Hofstra Law Review
Volume 8 | Issue 3
Article 11
1980
Restrictive Immunity and the OPEC Cartel: A
Critical Examination of the Foreign Sovereign
Immunities Act and International Association of
Machinists v. Organization of Petroleum Exporting
Countries
Russell S. Burman
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Recommended Citation
Burman, Russell S. (1980) "Restrictive Immunity and the OPEC Cartel: A Critical Examination of the Foreign Sovereign Immunities
Act and International Association of Machinists v. Organization of Petroleum Exporting Countries," Hofstra Law Review: Vol. 8: Iss. 3,
Article 11.
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Burman: Restrictive Immunity and the OPEC Cartel: A Critical Examination
NOTE
RESTRICTIVE IMMUNITY AND THE OPEC CARTEL:
A CRITICAL EXAMINATION OF THE
FOREIGN SOVEREIGN IMMUNITIES ACT AND
INTERNATIONAL ASSOCIATION OF
MACHINISTS v. ORGANIZATION OF
PETROLEUM EXPORTING COUNTRIES
The extent to which one sovereign can assert jurisdiction over
another' is a question that lies at the heart of international law jurisprudence and our general conception of the state. 2 Under the
weltanschauung existing from the Reformation 3 through the turn of
the twentieth century, 4 sovereigns enjoyed absolute immunity from
1. See generally E. ALLEN, THE POSITION OF FOREIGN STATES BEFORE NATIONAL COURTS (1933); I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW
314-32 (2d ed. 1973); IT D. O'CONNELL, INTERNATIONAL LAW 844-77 (2d ed. 1970);
S. SUCHARITKUL, STATE IMMUNITIES AND TRADING ACTIVITIES IN INTERNATIONAL
LAW (1959); J. SWEENY, THE INTERNATIONAL LAw OF SOVEREIGN IMMUNITY
(1963); Deik, Organs of States in Their External Relations: Immunities and Privileges of State Organs and of the State, in MANUAL OF PUBLIC INTERNATIONAL LAW
381, 424-37 (M. Sorensen ed. 1968); Lauterpacht, The Problem of JurisdictionalImmunities of Foreign States, 28 BRIT. Y.B. INT'L L. 220 (1951); Sanborn, The Immunity of Merchant Vessels When Owned by Foreign Governments, 1 ST. JOHN'S L.
REV. 5 (1926); Note, Sovereign Immunity of States Engaged in Commercial Activities, 65 COLUm. L. REv. 1086 (1965); see also R. FALK, THE ROLE OF DOMESTIC
COURTS IN THE INTERNATIONAL LEGAL ORDER
(1964).
2. The discipline of international law is concerned in large part with defining
the limits of state sovereignty. The sovereignty of individual nations is limited by
the development of an alternative body of normative law that stands exterior to the
law of any state or by the subjection of one state to the laws of another sovereign.
See generally R. FALK, THE STATUS OF LAW IN INTERNATIONAL SOCIETY 18 (1970);
H. KELSEN, PRINCIPLES OF INTERNATIONAL LAW 248-50, 307-08, 551-58 (2d ed. R.
Tucker ed. 1966); H. LAUTERPACHT, Sovereignty and Federation in International
Law, in III INTERNATIONAL LAW 5 (1977); I L. OPPENHEIM, INTERNATIONAL LAW §
70 (5th ed. 1937); I J. VERZIJL, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE
256, 260-61 (1968); Lauterpacht, The Nature of InternationalLaw and GeneralJurisprudence, 12 ECONOMICA 301 (1932).
3. See generally H. GRIMM, THE REFORMATION ERA, 1500-1650, at 5-51 (2d ed.
1973); E. HARBISON, THE AGE OF REFORMATION 14-20 (1954).
4. See R. FALK, supra note 2, at 19-20; A. HERSHEY, THE ESSENTIALS OF INTERNATIONAL PUBLIC LAW 26-88 (1923);
C. DE VISSCHER,
THEORY AND REAL-
ITY IN PUBLIC INTERNATIONAL LAW 3-44 (P. Corbett trans. 1968); Falk, A New Paradigm for InternationalLegal Studies: Prospects and Proposals, 84 YALE L.J. 969,
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suit in either their own courts or the courts of other nations. 5 As
the definition of the state changed, and as nations became more involved in commerce, sovereign immunity ceased to be absolute.
Instead a number of decisions began to differentiate between a
state's sovereign and nonsovereign activities, granting immunity for
the former and denying it for the latter. 6 By the midtwentieth century, the liability of a sovereign for tortious and commercial activities was well established outside the Soviet bloc. 7 This develop-
ment, referred to as restrictive immunity, was recently enacted by
Congress into positive law in the United States. 8 The Foreign Sovereign Immunities Act (FSIA)9 empowers United States courts to
assert jurisdiction over foreign states and their agencies and instrumentalities when the dispute results from, among other things, the
foreign state's commercial activity. 10 Conversely, the Act grants foreign states immunity for their governmental or public activities."1
The problems inherent in differentiating between a state's
982-93 (1975); Lane, Demanding Human Rights: A Change in the World Legal Order, 6 HOFSTRA L. REv. 269, 270-78 (1978).
5. See II D. O'CONNELL, supra note 1, at 844-45; Deik, supra note 1, at
424-27; Research in International Law of the Harvard Law School, Draft Convention
and Comment on Competence of Courts in Regard to Foreign States, 26 AM. J.
INT'L L. 450, 527-28 (Supp. 1932) [hereinafter cited as Harvard Draft Convention];
Sanborn, supra note 1, at 5-9.
6. See, e.g., Bank of United States v. Planters Bank, 22 U.S. (9 Wheat.) 904, 907
(1824); Judgment of June 11, 1903, Cour de Cassation, Brussells, [1903] Pasicrisie
Beige 294, 301-03; Judgment of Aug. 10, 1880, Cours d'Appel, Brussells, [1881]
Pasicrisie Beige 513, 519-20; Judgment of Nov. 24, 1910, Trib. Civ., Anvers, [1911]
Pasicrisie Beige 104; Judgment of Dec. 29, 1888, Trib. Civ., Brussells, 22 Belgique
Judiciaire 2d 383; Judgment of Jan. 22, 1930, Trib. de Commerce Mixte, Ciaro, 42
Bulletin d' Legislation et d' Jurisprudence Egyptiennes 212, 214-15; Judgment of
June 4, 1929, Corte App., Milan, For It. II 1145, 1146; Judgment of Feb. 11, 1926,
Trib. Rome, [1926] Monitore dei Tribunali 288, 289; Judgment of May 4, 1925, Trib.
Genova, [1925] Monitore dei Tribunali 777, 778; Judgment of Oct. 18, 1921, Trib.
Ilfor, Roumania, 50 J. Droit Int'l 663.
7. See Lauterpacht, supra note 1, at 250-72 app.
8. Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891
(codified at 28 U.S.C. §§ 1330, 1332(a)(2)-(4), 1602-1611 (1976)).
9. 28 U.S.C. §§ 1330, 1332(a)(2)-(4), 1602-1611 (1976).
10. Id. §§ 1604-1605.
11. Id. The Act establishes the affirmative defense of sovereign immunity.
Once the defendant produces evidence to establish that it is
a foreign state or one of its subdivisions, agencies or instrumentalities
and that the plaintiff's claim relates to a public act of the foreign state[,J ...
the burden of going forward [then] shift[s] to the plaintiff to produce evidence establishing that the foreign state is not entitled to immunity. The ultimate burden of proving immunity would rest with the foreign state.
H.R. REP. No. 1487, 94th Cong., 2d Sess. 17 (1976), reprinted in [1976] U.S. CODE
CONG. & AD. NEWS 6604, 6616.
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Burman: Restrictive Immunity and the OPEC Cartel: A Critical Examination
1980]
RESTRICTIVE IMMUNITY AND OPEC
commercial and governmental activities recently surfaced in an antitrust suit brought by the International Association of Machinists
and Aerospace Workers (IAM) in federal district court in California
against the Organization of the Petroleum Exporting Countries
(OPEC) and its member states.1 2 Plaintiffs sought treble damages
under the Sherman 13 and Clayton 14 Antitrust Acts, alleging that
they had been forced to pay artifically high gasoline prices because
of the defendants' alleged restraint of trade and price-fixing activities.1 5 In addition to monetary damages, the IAM sought to enjoin
future price fixing. 16 The court held that the price-fixing activities
of the OPEC nations are "governmental" and "public" in nature
and thus immune from suit in United States courts. 17 The OPEC
case is important not only because the underlying substantive issues affect the present world energy dilemma, but also because it
is one of the few decisions dealing with the commercial activity
8
provisions of the FSIA.'
12. International Ass'n of Machinists & Aerospace Workers v. Organization of
Petroleum Exporting Countries, 477 F. Supp. 553 (C.D. Cal. 1979).
13. 15 U.S.C. § 1 (1976).
14. Id. §§ 15, 26.
15. First Amended Complaint for Injunctive Relief and Damages for Sherman
Act Violations at 17-21, International Ass'n of Machinists & Aerospace Workers v. Organization of Petroleum Exporting Countries, 477 F. Supp. 553 (C.D. Cal. 1979)
[hereinafter cited as First Amended Complaint].
16. Id. at 21.
17. 477 F. Supp. at 569.
18. The commercial-governmental distinction enacted in § 1605(a)(2) has been
discussed in the following cases: Broadbent v. Organization of Am. States, 481 F.
Supp. 907 (D.D.C. 1980) (employment of civil servant not commercial activity);
Perez v. Bahamas 482 F. Supp. 1208 (D.D.C. 1980) (enforcement of commercial fishing laws does not make activity commercial even though it may have some commercial purpose or goal); Behring Int'l, Inc. v. Imperial Iranian Air Force, 475 F. Supp.
383 (D.N.J. 1979) (use of air force cargo planes to ship goods pursuant to contract
commercial activity); American Bell Int'l, Inc. v. Islamic Republic of Iran, 474 F.
Supp. 420 (S.D.N.Y. 1979) (breach of letter of credit in connection with service and
supply contract probably commercial activity); United Euram Corp. v. U.S.S.R., 461
F. Supp. 609 (S.D.N.Y. 1978) (breach of contract to provide various artists for cultural
exchange program commercial activity); Outboard Marine Corp. v. Pezetel, 461 F.
Supp. 384 (D. Del. 1978) (sale of golf carts in United States by foreign state-owned
corporation commercial activity); National Am. Corp. v. Federal Republic of Nigeria,
448 F. Supp. 622 (S.D.N.Y. 1978) (breach of letter of credit on cement purchase contract commercial activity); Gittler v. German Information Center, 95 Misc. 2d 788,
408 N.Y.S.2d 600 (Sup. Ct. 1978) (breach of contract to make films not commercial
activity because films promoted friendly relations and were diplomatic activity).
There have been various cases where the activity appears to be plainly commercial but where the court held the commercial activity provision of the FSIA inapplicable due to the absence of a "substantial effect within the United States" as required by 28 U.S.C. § 1603(e) (1976). See Amoco Overseas Oil Co. v. Compagnie
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This Note criticizes the court's conclusions as contrary to the
intent and dictates of the FSIA. It begins by setting forth the origins and general principles of sovereign immunity and discusses its
evolution in the United States. The broad outline of the immunity
provided to foreign sovereigns by the FSIA and the latitude given
the judicial branch in construing the definition of sovereign immunity and commercial activity are delineated. IAM v. OPEC and the
Nationale Algerienne de Navigation, 605 F.2d 648 (2d Cir. 1979) (proceeding by attachment to secure jurisdiction over clearly commercial activity is invalid under
FSIA since there were no minimum contacts and Act abolished in rem jurisdiction);
Carey v. National Oil Corp., 592 F.2d 673 (2d Cir. 1979) (per curiam) (breach of oil
supply contract with Bahamian subsidiary of American corporation held immune because defendant company did not engage in continuous and systematic activity in
United States); Paterson, Ltd. v. Compania United Arrows, S.A., 493 F. Supp. 626
(S.D.N.Y. 1980) (state-owned company held immune from responsibility for lost
cargo under contract provisions because of absence of direct effect in and lack of
defendant's contacts with United States); Waukesha Engine Div., Dresser
Americas, Inc. v. Banco Natl de Fomento Cooperative, 485 F. Supp. 490 (E.D. Wis.
1980) (breach of sales contract held immune because performance of contract in
United States insufficient contact for jurisdiction).
Similar in result and analysis are cases for wrongful death arising out of commercial activity by state defendants in foreign nations. See Corporacion Venezolana de
Fomento v. Vintero Sales Corp., 477 F. Supp. 615 (S.D.N.Y. 1979) (wrongful death
arising from negligent operation of hotel in Moscow has no direct effect in United
States); Upton v. Empire of Iran, 459 F. Supp. 264 (S.D.N.Y. 1978) (wrongful death
arising from collapse of airport structure has no direct effect in United States). But
see Icenogle v. Olympic Airways, 82 F.R.D. 36 (D.D.C. 1978) (jury trial permitted
for wrongful death arising from air crash in Greece).
Before the enactment of the FSIA there were several recent cases that sought to
resolve the governmental-commercial distinction in the context of the restrictive
theory of sovereign immunity. Perhaps most significant was the decision in Victory
Transport, Inc. v. Comisaria General, 336 F.2d 354 (2d Cir. 1964) (contract for shipment of wheat held not immune due to contracted agreement to arbitrate), cert.
denied, 381 U.S. 934 (1965). Other significant cases included, Isbrandtsen Tankers,
Inc. v. President of India, 446 F.2d 1198 (2d Cir.) (State Department suggestion for
immunity conclusive even though breach of wheat shipment agreement commercial
activity), cert. denied, 404 U.S. 985 (1971); Heaney v. Government of Spain, 445
F.2d 501 (2d Cir. 1971) (breach of agreement to generate adverse publicity against
another foreign sovereign held governmental activity); Petrol Shipping Corp. v.
Kingdom of Greece, 360 F.2d 103 (2d Cir.) (breach of wheat sales contract held commercial activity), cert. denied, 385 U.S. 931 (1966); National Am. Corp. v. Federal
Republic of Nigeria, 420 F. Supp. 954 (S.D.N.Y. 1976) (factual question as to
whether contract to purchase cement was for public use at time of contract);
Aerotrade, Inc. v. Republic of Haiti, 376 F. Supp. 1281 (S.D.N.Y. 1974) (breach of
sales contract for patrol boats, armed helicopters, and guns held governmental and
therefore immune); Pan Am. Tankers Corp. v. Republic of Vietnam, 296 F. Supp. 361
(S.D.N.Y. 1969) (breach of contract to transport cement held commercial activity).
For discussion of cases examining the governmental-commercial distinction, see
Lauterpacht, supra note 1, at 250-72 app.; Timberg, Sovereign Immunity and Act of
State Defenses: TransnationalBoycotts and Economic Coercion, 55 TEx. L. RE., 1,
15-16 (1976); Annot., 25 A.L.R.3d 322, 335-40 (1969).
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RESTRICTIVE IMMUNITY AND OPEC
court's reasoning are analyzed in terms of general restrictive immunity principles and the specific terms of the FSIA. This analysis reveals that the court erred in its determination of immunity and that
jurisdiction should have been maintained. The ramifications of this
conclusion are also explored. Should an injunction against the alleged antitrust violations of the OPEC nations be granted, it would
have grave foreign policy consequences for the United States. In
jurisprudential terms, the application of United States antitrust
laws to the actions of OPEC nations would represent a shift in the
traditional notions of sovereignty that have governed the conduct of
independent states since the days of the Reformation.
DEVELOPMENT OF SOVEREIGN IMMUNITY
General Principles
Absolute hinunity.-With the demise of the Holy Roman Empire and the hegemony of the Roman Catholic Church, the unified
order of Medieval Europe 19 was replaced by the decentralized
world of independent nation-states. 2 0 Each state possesses absolute
sovereignty, defined as plenary power within its territorial boundaries. 2 1 At the inception of this world order, sovereignty within each
19.
See generally L. COWIE, SIXTEENTH CENTURY EUROPE 30-45 (1977); P.
GAY & R. WEBB, MODERN EUROPE 35-45 (1973); C. OMAN, THE SIXTEENTH CENTURY 16-30 (1937); see also C. BRINTON, IDEAS & MEN: THE STORY OF WESTERN
THOUGHT 178-213 (1950).
20. See generally H. GRIMM, supra note 3, at 19-37; C. HAYES, MODERN
EUROPE TO 1870, at 3-44 (1953); D. OGG,EUROPE IN THE SEVENTEENTH CENTURY
(8th ed. 1960); see also J. BRONOWSKI & B. MAZLISH, THE WESTERN INTELLECTUAL
TRADITION 76-106 (1960); H. TREVoR-ROPER, THE CRISIS OF THE SEVENTEENTH
CENTURY 48-57 (1967). This transformation was formalized in 1648 by the Peace of
Westphalia, Treaty of Westphalia (1648), reprinted in I MAJOR PEACE TREATIES OF
MODERN HISTORY 1648-1967, at 7 (F. Israel ed. 1967), which marked the end of the
Thirty Years War. See generally M. ASHLEY, THE GOLDEN CENTURY 101 (1969); H.
GRIMM, supra, at 507-24; S. LEE, ASPECTS OF EUROPEAN HISTORY, 1494-1789, at
123-30 (1978); G. PAGES, THE THIRTY YEARS WAR, 1618-1648, at 228-49 (1939); S.
STEINBERG, THE THIRTY YEARS WAR (1966). For discussion by international law
scholars of the significance of this transformation, see sources note 2 supra. It should
be kept in mind that the disintegration began as early as the beginning of the Renaissance in the fourteenth century. See generally E. CHEYNEY, DAWN OF A NEW
ERA, 1250-1453 (1936); R.R. PALMER & J. COLTON, A HISTORY OF THE MODERN
WORLD 43-88 (3d ed. 1965).
21. J. BODIN, THE SIx BOOKES OF A COMMONWEALE *84-113, *153-82; R.
FALK, supra note 1, at 29-30; R. FALK, supra note 2, at 270 n.17; E. HARBISON, supra note 3, at 14-20; T. HOBBES, LEVIATHAN *89-93; I L. OPPENHEIM, supra note 2,
§ 67; III J. VERZIJL, supra note 2, at 1-13. See also I J. VERZIJL, supra, at 256-66.
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state was vested in the single figure of the monarch. 22 Since the
ability to create law is the chief attribute of sovereignty, 23 the
monarch alone possessed this authority. 2 4 The sovereign's plenary
powers were limited only by God,2 5 the laws of nature, 26 or selfrestraint. 27 This power structure would have been undermined if
the monarch had been forced to submit to the jurisdiction of the
courts and laws he or she had created. 28 The monarch thus remained above the commands of positive law. 29 In the international
arena, the assertion of jurisdiction over another sovereign subjected that sovereign to the other's commands, thereby creating a
feudal relationship between the two or implying a source of sovereignty superior to both sovereigns. Either violated the principle of
independent equality between states.,30
Restrictive Immunity.-Sovereign immunity evolved to keep
pace with the changing nature of the state and the world economic
order. Prior to any actual diminishment of immunity, the theoretical foundations for an altered view of the state were laid by Locke
and Rousseau. Both philosophers placed the locus of sovereignty
with the citizens of the state and predicated the state's legitimacy
on the continuing consent of the governed. 31 Since the state's legitimacy was no longer premised on the maintenance of superiority
22. M. ASHLEY, supra note 20, at 14-28; M. BELOFF, THE AGE OF ABSOLUTISM, 1660-1815, at 21-22 (1962); J. BODIN, supra note 21, at *153-59; H. GIuMM, sutpra note 3, at 524-35.
23. American Banana Co. v. United Fruit Co., 213 U.S. 347, 358 (1909)
(Holmes, J.); J. BODIN, supra note 21, at *159-60.
24. J. BODIN, supra note 17, at *156-59; see C. BEHRENS, THE ANCIEN RgGIME
86, 106-07 (1967).
25. IC. BEHRENS, supra note 24, at 86-88; J. BODIN, supra note 21, at *92, *10406; Mousnier, Some Reflections on Absolutism and Despotism, in THE EUROPEAN
PAST 275, 276 (S. Clough, P. Gay, C. Warner & J. Cammett eds. 1970) (quoting C.
LOYSEAU, DES SEIGNEURIES ch. 2, nos. 1-9).
26. C. BEHRENS, supra note 24, at 96-105; J. BODIN, supra note 21, at *92,
*104-06, *109-13; Mousnier, supra note 25, at 277.
27. T. HOBBES, supra note 21, at *91-92.
28. See Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) (Holmes, J.); J.
BODIN, supra note 21, at *98-101. The subjection of the sovereign to suit in his or
her own courts, as was the case in France for the enforcement of contracts, was
based on theories of natural law or implied consent. Id. at *92-93, *106-07; J.
FRANKLIN, JEAN BODIN AND THE RISE OF ABSOLUTIST THEORY 79-85 (1973).
29. See J. BODIN, supra note 21, at *91-92; Laski, The Responsibility of the
State in England, 32 HARV. L. REv. 447 (1919).
30. See The Antelope, 23 U.S. (10 Wheat.) 66, 122 (1825) (Marshall, C.J.); text
accompanying note 50 infra. See also I L. OPPENHEIM, supra note 2, §§ 70, 116a.
31. See J. LOCKE, Two TREATISES OF GOVERNMENT 90, 196-97 (T. Cook ed.
1974); J.J. ROUSSEAU, THE SOCIAL CONTRACT 76-77 (M. Cranston trans. 1968).
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1980]
over its citizens, submission to jurisdiction in its own courts no
longer threatened the stability of the state.3 2 Similarly, submitting
to jurisdiction in another sovereign's courts no longer posed the
same threat to the state's internal political structure. The refusal by
a sovereign to submit to the judgment of a foreign nation's court on
activities undertaken or having an effect within the court's jurisdiction33 implies a superiority to the law. Submission to jurisdiction
therefore furthers notions of comity by ensuring that no nation
holds itself above the laws of another.3 4 Problems arise when dealing with the internal acts of a sovereign having effects within another state. The assertion of jurisdiction by the affected state brings
the sovereignty of the two states into conflict. Since sovereignty is
defined under the current international order as plenary power
within defined geographic boundries, 35 both states have a legitimate claim to freedom from outside interference: the state asserting jurisdiction has the right to protect itself from outside influences, and the state against whom jurisdiction is asserted has the
right to regulate its internal affairs and conduct its activities without answering to another authority. The conundrum is the result of
a concurrent growth in the interdependence of nation-states and
the maintenance of traditional notions of independent, decentralized sovereignty.
The most clear-cut diminution of sovereign immunity has occurred in the realm of a state's commercial activities. The industrial
revolution produced a dramatic increase in the level of international commercial activity.36 In contrast to the mercantile system of
the past, 3 7 this activity was based on commercial trades between
equals. 38 While most of the increased commercial activity was
32.
Cf. Bank of United States v. Planters' Bank, 22 U.S. (9 Wheat.) 904, 907
(1824) (sovereign immunity denied for state-run bank). But see Laski, supra note 29.
33. The FSIA extends jurisdiction to both. 28 U.S.C. § 1605(a)(2) (1976). This is
substantially similar to the results reached by the common law See, e.g., United
States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945).
34. See Lauterpacht, supra note 1, at 229-32.
35.
See H. KELSEN, supra note 2, at 307-43; text accompanying note 21 supra.
CLOUGH & C. COLE, ECONOMIC HISTORY OF EUROPE 440, 585-86,
604 (3d ed. 1952); A. MiLrWARD & S. SAUL, THE DEVELOPMENT OF THE ECONOMICS
OF CONTINENTAL EUROPE, 1850-1914, at 469 (1977).
36. See S.
37. See generally S. CLOUGH & C. COLE, supra note 36, at 195-232, 316-53; H.
HEATON, ECONoMic HISTORY OF EUROPE 384-406 (rev. ed. 1936); A. SMITH, THE
WEALTH OF NATIONS 397-652 (E. Cannon ed. 1937).
38. See A. MILWARD & S. SAUL, supra note 36, at 470-85; cf. id. at 505 (primary
purpose of whatever trade there still was with colonies was to benefit colonial pow-
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carried on by private individuals, 39 the changing world economic
order brought nations into greater contact with one another and
the citizens of foreign states. Some of this contact invariably involved state-controlled commercial enterprises, 40 such as statetrading monopolies4 1 or commercial vessels. 42 In addition, the state
frequently found itself in the position of a consumer, buying goods
from foreign merchants. 43 Refusing to submit disputes involving
these commercial activities to judicial resolution could frequently
come only at the expense of disrupting the orderly functioning of
44
the commercial system.
In this new order, immunity continued to be provided to sovereignties for their public, governmental acts; it was denied, however, for a government's private, commercial activities. 45 When a
nation acts in a commercial capacity, the rationales of absolute immunity lose much of their force. Engaging in commercial activity
does not rest on the power to compel conduct. Rather, the ability
to engage in the activity is shared equally with private persons,
and it needs no greater source of legitimacy than the acts of a private individual. Therefore, when a state engages in commercial acer's trade with other European states). See also C. CLOUGH & C. COLE, supra note
36, at 257-59; H. FIEDLAENDER & J. OSER, ECONOMIC HISTORY OF MODERN EUROPE 91-95 (1953).
39. H. HEATON, supra note 37, at 636; Hazard, State Trading in History and
Theory, 24 LAW & CONTEMP. PROB. 243, 243-44 (1959). Economic theory after mercantilism transfered the emphasis from national wealth to individual wealth. S.
CLOUGH & C. COLE, supra note 36, at 357-69.
40. See S. SUCHABITKUL, supra note 1, at 115-26, 320-25; Fawcett, Legal Aspects of State Trading, 25 BRIT. Y.B. INT'L L. 34 (1948); Sanborn, supra note 1. For
an account of recent developments in state trading, see Hazard, supra note 39.
41. See S. SUCHARITKUL, supra note 1, at 323. For accounts of recent developments, see Behrman, State Trading by Underdeveloped Countries, 24 LAW &
CONTEMP. PROB. 454 (1959); Mikesell & Wells, State Trading in the Sino-Soviet
Bloc, 24 LAw & CONTEMP. PROB. 435 (1959); Ouin, State Trading in Western
Europe, 24 LAw & CONTEMP. PROB. 398 (1959).
42. See Sanborn, supra note 1; Weston, Actions Against the Property of Sovereigns, 32 HARv. L. REV. 266 (1919).
43. See S. SUCHARITKUL, supra note 1, at 324.
44. See Alfred Dunhill, Inc. v. Republic of Cuba, 425 U.S. 682, 703 (1976); S.
SUCHARITKUL, supra note 1, at 330-32; Fensterwald, Sovereign Immunity and Soviet
State Trading, 63 HARv. L. REV. 614, 627 (1950).
45. The distinction is discussed in S. SUCHARITKUL, supra note 1, at 31325; Dei.k, supra note 1, at 430-38. For critique of this distinction, see II D.
O'CONNELL, supra note 1, at 224-26; Lauterpacht, supra note 1, at 236-41. For an
early examination of judicial developments in the theory of restrictive immunity, see
Harvard Draft Convention, supra note 5, Part III. See also E. ALLEN, supra note 1,
at 300-02.
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tivity, the preservation of independence and equality between sovereign nations is not undermined by the assertion of jurisdiction.
Whether an activity is designated commercial or sovereign
usually hinges on which aspect of the activity becomes the focus of
the court's inquiry. When a foreign nation purchases boots for its
army, is the activity commercial or governmental? If a court considers the purpose for which the boots are purchased, it will conclude that the foreign nation is equipping its militia, a governmental activity. 46 If a court focuses instead on the nature of the
activity, it will conclude that the state has simply entered into a
commercial contract. Under this "juridical nature" analysis, the
reason or purpose for the activity is irrelevant and the activity is
characterized solely on the basis of whether the nature of the activity is one in which private, nonsovereign persons can engage. 4 7 To
the extent that the state always acts for a public purpose, the nature of the activity is a more appropriate inquiry.
The Law of Sovereign Immunity in the United States
Absolute Immunity.-In 1812, the Supreme Court in Schooner
46. This situation is discussed by Mr. Timberg. He concludes that the activity
in question should be characterized by its nature and not by its purpose. See
Timberg, supra note 18, at 15-16.
47. The juridical nature test was developed by Professor Weiss in his article
Competence ou l'Incomp6tence des Tribunaux a l'l0gard des Ittats Etrangers, [1923]
1 ACADEMIE DE DROIT INTERNATIONAL DE LA HAYE, RECUEIL DES COURS 525. The
article is discussed at length in Lauterpacht, supra note 1, at 225. Professor
Lauterpacht criticized Weiss' nature test as leading to absurd results and ultimately
delaying the real sensitive issues involved for sovereign immunity. In discussing
contracts that will be deemed commercial under the nature test Lauterpacht states:
"Individuals do not purchase shoes for their armies, they do not buy warships for the
use of the state, they are not as such, responsible for the management of the national
economy." Id. at 224. Despite Lauterpacht's criticisms of the juridical nature test, he
would abolish sovereign immunity except where it would be contradictory to notions
of comity. Id. at 237-39. For the views of other writers critical of the juridical nature
test, see Note, supra note 1, at 1096 (leads to absurd results); Comment, The Jurisdictional Immunity of Foreign Sovereigns, 63 YALE L.J. 1148, 1163 (1954) (lack of
satisfactory criteria). Both of these commentators were equally dissatisfied with the
purpose test and considered State Department suggestions to be the best resolution
of the problem. See generally text accompanying notes 59-65 infra.
Courts employing the nature test have arrived at different conclusions for the
very same activities. In two separate cases involving the shipment of grain, the Second Circuit considered the earlier case commercial activity and the latter public and
therefore immune. Compare Isbrandtsen Tankers, Inc. v. President of India, 446
F.2d 1198 (2d Cir.), cert. denied, 404 U.S. 985 (1971), with Petrol Shipping Corp. v.
Kingdom of Greece, 360 F.2d 103 (2d Cir.), cert. denied, 385 U.S. 931 (1966). For
other illustrations of inconsistencies and the practical advantages of the nature test,
see Timberg, supra note 18, at 15-16.
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Exchange v. McFaddon48 unanimously held that international law
prohibits a domestic court from asserting jurisdiction over a foreign
sovereign. 49 The libellants attached the ship and maintained that it
had been misappropriated by the Emperor Napoleon. Chief Justice
Marshall wrote for the Court that
[o]ne sovereign being in no respect amenable to another, and
being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to
enter a foreign territory only under an express license, or in the
confidence that the immunities belonging to his independent
sovereign station, though not expressly stipulated, are reserved
by implication, and will be extended to him. 50
Despite this strong statement about comity, Chief Justice Marshall
in dicta distinguished between the warship at issue and the personal property of a prince acquired in a foreign state that may
"possibly be considered as [subject] to the territorial jurisdiction"
of a foreign state. 5 1 Later courts maintained that the Schooner
holding was limited to military property and reached different results when immunity was claimed for a merchant vessel or the
52
commercial activities of a foreign sovereign.
This narrow reading of Schooner was rejected by the Supreme
Court in 1926 in Berizzi Bros. v. Steamship Pesaro.53 The libel in
rem of a merchant vessel owned by the Italian government was
dismissed on the premise that international law precluded the as54
sertion of jurisdiction over a foreign sovereign or its property.
The Court refused to distinguish between merchant vessels and
warships; instead, it maintained that a foreign sovereign's merchant
vessels are "public ships in the same sense that warships are." 5 5
The Schooner dicta intimating that jurisdiction may exist over the
48. 11 U.S. (7 Cranch) 116 (1812).
49. Id. at 146.
50. Id. at 137.
51. Id. at 145.
52. The qualifying language in Schooner Exchange is cited as foreshadowing
the adoption of the restrictive principle of sovereign immunity. See United States v.
Wilder, 28 F. Cas. 601, 604 (C.C.D. Mass. 1838) (No. 16,694) (opinion per then-Judge
Story); The Pesaro, 277 F. 473, 475-76 (S.D.N.Y. 1921), vacated and dismissed for
lack of juris., 13 F.2d 468 (S.D.N.Y.), aff'd sub nom. Berrizi Bros. v. Steamship
Pesaro, 271 U.S. 562 (1926); Timberg, supra note 18, at 5-6.
53. 271 U.S. 562 (1926).
54. Id. at 574.
55. Id.
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private acquisitions of foreign sovereigns within the domestic na-
tion was distinguished on the grounds that states were generally
not engaged in commercial trading at the time the case was consid-
ered. 56 The Court found "no international usage which regards the
maintenance and advancement of the economic welfare of a people
in time of peace as any less a public purpose than the maintenance
and training of a naval force." 5 7 Focusing on the purposes of the
activity, the Supreme Court characterized commercial activities as
falling within the functions of government, and, in contrast to the
growing trend in other countries, 58 granted the state total immunity by denying the distinctions between commercial and public
activities.
The Advent of Restrictive Immunity and the Role of the State
Department.-In the 1940's the Supreme Court adopted the view
that since the issue of sovereign immunity is replete with questions
of diplomacy, the courts will defer to the suggestions of the Department of State on issues of sovereign immunity for foreign na-
tions. 59 In 1952 the State Department adopted the restrictive
theory of sovereign immunity. 60 The State Department believed
that such action was necessary because absolute immunity was inconsistent with the acceptance of restrictive immunity by all the
nations of the world except Great Britain and the Soviet-bloc countries, the United States' voluntary submission to the jurisdiction of
56. Id. at 573. Although never commanding a majority, this position has been
adopted by a number of Supreme Court Justices in a domestic immunity context. See
New York v. United States, 326 U.S. 572, 591-98 (Douglas, J., dissenting, joined by
Black, J.).
57. Id. at 574.
58. See Harvard Draft Convention, supra note 5, Part III.
59. In Ex parte Republic of Peru, 318 U.S. 578 (1943), and Republic of Mexico
v. Hoffman, 324 U.S. 30 (1945), the Court adopted the position that decisions concerning sovereign immunity are closely tied to the foreign relations of the United
States. In the former case the Court recognized that the State Department was superior to the judiciary in its expertise and information on the result a grant or denial of
immunity would have on American foreign relations. Moreover, disputes were
deemed better resolved through diplomatic channels, which took into account foreign relations, than through the "compulsions of judicial proceedings." 318 U.S. at
588-89. In Republic of Peru it became the "duty" of courts to abstain from adjudication when the State Department suggested that a denial of sovereign immunity
would adversely affect foreign relations. Id. In Hoffman the Court held that conclusive effect should be given to State Department suggestions in order to eliminate potential embarrassment in maintaining foreign relations. 324 U.S. at 35-36.
60. Letter from Jack B. Tate, Acting Legal Advisor of the Dep't of State, to
Philip B. Perlman, Acting Attorney General (May 19, 1952), reprinted in 26 DEP'T
STATE BULL. 984 (1952) and Alfred Dunhill, Inc. v. Republic of Cuba, 425 U.S. 682,
714 app. 2 (1976).
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foreign courts, and the increasing commercial interaction between
private individuals and state entities. 61 A procedure was adopted
that entitled a foreign state to a departmental hearing to determine
if its activity was commercial or governmental. 62 A major drawback
of this policy was its lack of guidelines for what constituted commercial activity. 63 Since a refusal by the State Department of a direct request from a foreign state to recommend immunity had potential repercussions for United States foreign relations, the State
Department frequently found itself caught in the middle between a
desire to adhere to a theory of restrictive immunity and pressures
from foreign states to recommend immunity." This ad hoc
decisionmaking led to inconsistent rulings concerning when a sovereign was entitled to immunity.6 5
61. Id., reprinted in 26 DEP'T STATE BULL. at 985 and Alfred Dunhill, Inc. v.
Republic of Cuba, 425 U.S. at 714 app. 2 (1976).
62. The State Department never formally adopted any procedures for issuing
immunity suggestions. The judiciary has sought, and the State Department has
given, advice on immunity questions since The Prize Cases in the eighteenth century. The Cassius, 2 U.S. (2 Dallas) 365 (1796); United States v. Peters, 3 U.S. (3
Dallas) 120 (1795). In Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116
(1812), a State Department suggestion was accepted by the Court. See Note, The Relationship Between Executive and Judiciary: The State Department as the Supreme
Court of InternationalLaw, 53 MINN. L. REv. 389 (1968). After the executive became the primary decider of immunity questions, the absence of any formal procedure came under criticism on due process grounds. E.g., Cardozo, Sovereign Immunity: The Plaintiff Deserves a Day in Court, 67 HA1v. L. REv. 608, 613 (1954). See
also Jessup, Has the Supreme Court Abdicated One of Its Functions?, 40 AMl. J.
INT'L L. 168, 169 (1946). A number of writers have described existing State Department procedures for resolving immunity questions. Cardozo, supra, at 612-13;
Heller, Litigation of Sovereign Immunity Questions, in AM. Soc'Y INT'L L. PROCEEDINGS OF 70TH ANNUAL MEETING 42, 46-47 (1976); Lyons, The Conclusiveness
of the Suggestion and Certification of the American State Department, 24 BRIT.
Y.B. INT'L L. 116, 117-18 (1947).
63. For critical analyses of State Department decisionmaking and its function in
the American law of sovereign immunity prior to the adoption of the FSIA, see
Jessup, supra note 62, at 169; Lyons, supra note 62; Note, supra note 62. See also
Lyons, Conclusiveness of the Statements of the Executive-Continental and Latin
American Practice, 25 BRIT. Y.B. INT'L L. 180 (1948). For defenses of the practice of
State Department immunity suggestions, see Note, supra note 1; Comment, supra
note 47, at 1163.
64. The State Department would offer or suggest immunity in order to achieve
certain political ends. A case that exemplifies this type of political trade is Rich v.
Naviera Vacuba, S.A., 295 F.2d 24 (4th Cir. 1961), where the Department traded a
suggestion of immunity for the return of a hijacked airliner. See Timberg, Sovereign
Immunity, State Trading, Socialism and Self-Deception, 56 Nw. L. REv. 109, 116
(1961).
65. For a discussion of the inconsistencies in the cases, see Timberg, supra
note 18, at 15-16.
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The judicial decisionmaking that took place when the State
Department made no recommendation produced confusion and inconsistencies, not rational legal doctrine. In two cases decided
within five years of each other, the Second Circuit arrived at inconsistent conclusions as to whether a shipment of wheat was a
commercial activity. 66 A number of courts only considered the purpose 6 7 for which a commercial transaction was entered, while others looked solely to the nature of the transaction. 68 As international
commercial trading continued to grow, and as the theory of restrictive immunity developed, political decisionmaking on the basis
of diplomatic considerations became increasingly inappropriate.
Private individuals entering into transactions with governmental
entities could not be sure of obtaining judicial relief for breaches of
contract. 69 The foreign policy needs of the United States, its trading activities, and the world business community were thus best
served by the development of a theory of restrictive immunity
based on legal principle and a consistent body of precedent. In
1973 the State Department and the Department of Justice began to
lobby for legislation that would end the State Department's involvement and codify the restrictive theory of sovereign immu70
nity.
FoREIGN SOVEREIGN IMMUNITIES
ACT
The Foreign Sovereign Immunities Act of 1976 was enacted
with four basic goals. First, it codified the restrictive theory of sovereign immunity. 71 Second, immunity questions were recommitted
66.
See note 47 supra.
67. E.g., Aerotrade, Inc. v. Republic of Haiti, 376 F. Supp. 1281 (S.D.N.Y. 1974)
(governmental purchase of military equipment entitled to immunity).
68. E.g., Et Ve Balik Kurumu v. B.N.S. Int'l Sales Corp., 25 Misc. 2d 299, 204
N.Y.S.2d 971 (1960) (governmental purchase of meat for army denied sovereign im-
munity), aff'd, 17 A.D.2d 927, 233 N.Y.S.2d 1013 (1st Dep't 1962).
69. The House Report recognized and relied in part on this fact. H.R. REP. No.
1487, supra note 11, at 9, reprinted in U.S. CODE CONG. & AD. NEWS at 6607.
70. Jurisdiction of U.S. Courts in Suits Against Foreign States: Hearings on
H.R. 11315 Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 94th Cong., 2d Sess. 24 (1976) (testimony of Monroe Leigh, legal adviser for Dep't of State) [hereinafter referred to as
House Hearings]. For a collection of articles and comments on the originally proposed act and the Act that was finally enacted, see Von Mehren, The Foreign Sovereign Immunities Act of 1976, 17 COLUM. J. TRANSNAT'L L. 33, 43 n.45, 44 n.47
(1978).
71. H.R. REP. No. 1487, supra note 11, at 7, reprinted in [1976] U.S. CODE
CONG. & AD. NEWS at 6605.
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to the judiciary. 72 Third, a statutory system for making service of
process was established. In place of the old in rem and quasi in
rem system, in personam jurisdiction was provided if the defendant
had the minimum contacts necessary for the assertion of in personam jurisdiction in a domestic context. 73 Fourth, jurisdiction was
provided for the execution of judgments. 74 The FSIA thus eliminated the State Department as the decisionmaking body for immunity and established a system whereby sovereign immunity would
be determined by the judicial branch in accordance with legal principle and not political expedience.7 5 This brought the United
States into step with the great majority of nations.76
A precise definition of commercial activity was rejected as impractical, 7 7 and instead the term was defined broadly as a "regular
course of commercial conduct or a particular transaction or act."7 8
The FSIA restricted judicial discretion in defining commercial activity by incorporating the juridical-nature test 79 into its definition
of commercial activity. The House Report states that
the fact that goods or services to be procured through a contract
are to be used for a public purpose is irrelevant; it is the essentially commercial nature of an activity or transaction that is critical. Thus, a contract by a foreign government to buy provisions
or equipment for its armed forces or to construct a government
building constitutes commercial activity.8 0
This limits the parameters of the judicial inquiry to the form of the
transaction or activity. If the state is a party to a commercial conId., reprintedin [1976] U.S. CODE CONG. & AD. NEWS at 6606.
73. Id. at 7-8, 13, reprintedin [1976] U.S. CODE CONG. & AD. NEws at 6606,
6612. See generally Shaffer v. Heitner, 433 U.S. 186 (1977); McGee v. International
Life Ins. Co., 355 U.S. 220, 223 (1957); International Shoe Co. v. Washington, 326
U.S. 310 (1945). McGee and International Shoe were cited with approval by the
House Report. H.R. REP. No. 1487, supra note 11, at 13, reprinted in [1976] U.S.
CODE CONG. & AD. NEWS at 6612.
74. H.R. REP. No. 1487, supra note 11, at 8, reprinted in [1976] U.S. CODE
CONG. & AD. NEWS at 6606.
75. See 28 U.S.C. § 1602 (1976); H.R. REP. No. 1487, supra note 11, at 7, re72.
printed in [1976] U.S. CODE CONG. & AD.NEws at 6606.
76. See H.R. REP. No. 1487, supra note 11, at 7, 9, 12, reprinted in [1976] U.S.
CODE CONG. & AD. NEWS at 6605, 6607-08, 6610; Lauterpacht, supra note 1, at
250-72 app.
77. H.R. REP. No. 1487, supra note 11, at 16, reprinted in [1976] U.S. CODE
CONG. & AD.NEWS at 6615.
78. 28 U.S.C. § 1603 (1976).
79. See Id.
80. H.R. REP. No. 1487, supra note 11, at 16, reprinted in [1976] U.S. CODE
CONG. & AD.NEWS at 6615.
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tract, the court's focus is the making of that contract. Any consideration of the intended use of the goods procured by the contract is
not only irrelevant, but improper under the Act.8 1 In assessing the
transaction or activity, the House Report indicated that courts
engaged in by
should ask whether the activity is either ordinarily 82
private persons or "customarily carried on for profit."
The characterization given to an activity will frequently turn
on which nation's customs are to control the definition of commercial activity. The conflict between competing claims of sovereignty
makes the decision difficult. 83 If the domestic nation's definition
controls, then it imposes its notions of business organization on the
other state. If the foreign state's definition controls, the sovereignty
and autonomy of the domestic state is diminished by its inability to
assert its laws where it has a legitimate interest in doing so to pro-
tect its citizens. The conflict is less onerous when the foreign state
acts directly within the territorial borders of the state asserting ju-
risdiction. Turning Chief Judge Marshall's words in Schooner84 on
their head, the foreign sovereign implicitly agrees to abide by the
customs and laws of the domestic state when it engages in activities
there.85 The difficult problems arise when jurisdiction is asserted
on the basis of the effects of a foreign state's activities undertaken
completely outside the territory of the state asserting jurisdiction.
81. Mr. von Mehren focuses on the existence of a contractual relationship in
determining when a foreign nation's activity is commercial. When the state seeks to
undo its previous contractual obligation for concession rights, investment, or loan
agreements by expropriation through its legislative organ or by executive fiat, the
state's initial choice to enter into a contract should be determinative that the activity
is commercial. See Von Mehren, supra note 70, at 54-58. In effect, the commercial
relationship between the plaintiff and the foreign sovereign will dictate the result if
existing obligations are breached regardless of the form by which the defendant state
seeks to break off the relationship. The approach suggested by Von Mehren makes
sense in that it prevents states from abusing those powers that are essentially governmental to get out of existing commercial obligations. "The state, having chosen initially to enter into a contract through the juridically private act of contracting cannot
assert that it is acting governmentally when it breaches its contract, irrespective of
the manner in which it accomplishes its breach, whether by legislative or executive
action." Id. at 54. See Texaco Overseas Petroleum Co. (Libyan Arab Republic), 104
J. Droit Int'l 305, 17 Int'l Legal Mat. 1 (Int'l Arb. Trib. 1977); text accompanying
note 183 infra.
No. 1487, supra note 11, at 16, reprinted in [1976] U.S. CODE
at 6615.
83. See text accompanying note 35 supra.
84. See text accompanying note 50 supra.
85. Cf. I. BROWNLIE, supra note 1, at 326-27 (advocating legislation that would
establish express waiver as precondition for doing business within jurisdiction, thus
satisfying Chief Justice Marshall's criteria in Schooner).
82. H.R.
REP.
CONG. & AD. NEWS
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In an age of growing interaction and interdependence, significant
internal activity will almost always have foreseeable ripple effects
throughout the world. This is especially true when discussing the
conduct of state-owned production and trading companies. If the
company does not conduct any business activity within the state asserting jurisdiction, findings of implicit waiver are less persuasive
and an assertion of jurisdiction represents potential infringement
on the sovereignty of the foreign nation.
While the FSIA does not address the issue directly, its language indicates that the framers clearly intended American
standards to apply. For example, in explaining the Act's definition
of commercial activity, the House Report enumerated a number of
specific examples, including "the carrying on of a commercial enterprise such as a mineral extraction company, an airline or a state
trading corporation," 86 This is inconsistent with the planned econo86. H.R. REP. No. 1487, supra note 11, at 16, reprinted in [1976] U.S. CODE
CONG. & AD. NEWS at 6614-15. Additional examples of commercial activity set out
by the House Report are:
[A] foreign government's sale of a service or a product, its leasing of property, its borrowing of money, its employment of laborers, clerical staff or
public relations or marketing agents, or its investment in a security of an
American corporation would be among those included within the definition.
Id., reprinted in [1976] U.S. CODE CONG. & AD NEWS at 6615.
It is clear that the legislators were on notice concerning the increase in state cartels, specifically oil. A letter to the House committee considering the bill placed the
issue squarely before them:
From our perspective, this bill is important because of the increasing
tendency of governments abroad to conduct foreign business through state
trading organizations, state-owned corporations, or directly through government ministries. In the event of a legal dispute with private firms coming
under U.S. jurisdiction, presently there can be doubt as to whether action is
possible because the state-owned firm may be able to utilize the defense of
sovereign immunity.
This trend is particularly evident in the area of raw materials and in
cases of cartels.
In the resource area, state-owned firms now predominate in the oil field
in many developing countries: two of the new entrants on Fortune magazine's list of the 50 largest industrial companies in the world, Petrobras and
National Iranian Oil Company are state-owned.
States are also becoming involved in the creation of industrial conglomerates which buy, sell, and invest in the U.S. and elsewhere abroad through
companies such as Sonatrach of Algeria, Pertamina of Indonesia, or I.V.P. of
Venezuela. Moreover, the application of U.S. antitrust authority to collusive
efforts of foreign governments via cartels which restrain trade affecting the
United States may be jeopardized by broad interpretations of sovereign immunity.
The bill before your committee would formalize the restrictive view of
sovereign immunity-i.e., that it can only be invoked for public acts whose
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mies of a number of states. If the American definition did not apply, these states could maintain that the operation of a mineral
extraction company is, by their own national standards, a
governmental activity. Rather than extrapolate a definition from a
purely hypothetical world-wide consensus, a foreign sovereign
trader bears the risk of domestic trade regulation when it engages
in commercial activities that directly affect the lives of the domestic
state's citizens. Commentators are generally in agreement that the
laws and customs of the forum state should govern. They have
reached this conclusion primarily on the ground that it is impossible to discern any universal definition of commercial activity. 87
IAM v. OPEC
The basic claim in lAM v. OPEC88 was that OPEC and its
member nations violated the antitrust laws by engaging in pricefixing activities. 8 9 Plaintiff maintained that fixing the selling price of
crude oil resulted in higher gasoline prices. 90 The union sought
treble damages for the allegedly artificially high price union members paid for gasoline 9l and an injunction enjoining future pricefixing activities. 92 For jurisdiction to be maintained under the
FSIA, plaintiff had to establish that the alleged price-fixing activities of the defendants were commercial activity.9 3 Specifically,
plaintiff contended that OPEC and its member nations established
a uniform floor price for crude oil by mutual agreement on posted
prices, taxes, or royalty rates. 9 4 The union also claimed that each
defendant nation engaged in, and profited from, the commercial
nature is not "commercial," so that, in effect, state-owned firms are treated,
as they should be, in the same way as are all private firms with whom they
deal and compete. In our opinion, such treatment is long overdue.
House Hearings, supra note 70, at 71, 71 (letter from Timothy Stanley, president of
Int'l Econ. Pol'y Assn., to Hon. Walter Flowers).
87. See, e.g., Bishop, New United States Policy Limiting Sovereign Immunity,
47 Am. J. INT'L L. 93, 102-05 (1953); Bower, Britline & Loomis, The Foreign Sovereign Immunities Act of 1976, 73 AM. J. INT'L L. 200, 206-07 (1978); Fawcett, supra
note 40, at 46-47; Fox, Competence of Courts in Regard to "Non-sovereign" Acts of
Foreign States, 35 AM. J. INT'L L. 632, 640 (1941); cf. Lauterpacht, supra note 1, at
229-32 (advocating that foreign states should be subject to same degree of jurisdiction as forum state).
88. 477 F. Supp. 553 (C.D. Cal. 1979).
89. First Amended Complaint, supra note 15, at 17-19.
90. Id. at 19-20.
91. Id. at 21.
92. Id.
93. 28 U.S.C. § 1605(a)(2) (1976). See note 11 supra.
94. First Amended Complaint, supra note 15, at 4-7.
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sale of oil through state-owned 95oil companies or through state participation in private companies.
None of the defendants responded to plaintiff's charges. 98 The
court dismissed OPEC as a separate defendant because it was not a
state entity subject to jurisdiction under the FSIA. 97 Amici curiae
for the individual OPEC nations maintained that the defendants'
activities were governmental in nature and therefore accorded immunity by the FSIA. They contended that the OPEC nations were
engaging in a traditional act of sovereignty by exercising control
over their natural resources. 98 One amicus brief argued that since
95. Id. at 7-11, 14. None of the private oil companies were joined in the action,
even though it was alleged that they took part in the conspiracy that formed the gravamen of plaintiff's complaint.
96. 477 F. Supp. at 559-60. Since none of the defendants answered the complaint, an affirmative defense of sovereign immunity was not asserted under the procedure provided in 28 U.S.C. § 1604 (1976). See note 11 supra. Under the FSIA a
default judgment may not be entered "unless the claimant establishes his claim or
right to relief by evidence satisfactory to the court." 28 U.S.C. § 1608(e) (1976). Since
sovereign immunity is a question of subject matter jurisdiction, 28 U.S.C. § 1330(a);
H.R. PrP. No. 1487, supra note 11, at 13, reprinted in [1976] U.S. CODE CONG. &
AD. NEws at 6611-12, the court was required to raise it on its own motion if it believed that it might not exist, FED. R. Civ. P. 12(h)(3). The court consolidated plaintiff's motions for default and preliminary injunctive relief with the trial on the injunction. Amici curiae represented the OPEC members at trial and through briefs. 477 F.
Supp. at 559-60.
97. Since OPEC was neither a foreign sovereignty nor an agency or instrumentality of one, it could not be served under the FSIA. 28 U.S.C. § 1602 (1976). See 447
F. Supp. at 560. A state agency under 28 U.S.C. § 1603(b) (1976) is defined as:
(b) An "agency or instrumentality of a foreign state" means any entity(1) which is a separate legal person, corporate or otherwise, and
(2) which is an organ of a foreign state or political subdivision thereof,
or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
(3) which is neither a citizen of a State of the United States as defined
in section 1332(c) and (d) of this title, nor created under the laws of any
third country.
Courts have had different conceptions about what is a state agency when confronted
with organizations from nonmarket-economy countries. Compare Yessenin-Volpin v.
Novosti Press Agency, 443 F. Supp. 849 (S.D.N.Y. 1978), with Edlow Int'l Co. v.
Nuklearna Elektrarna Krsko, 441 F. Supp. 827 (D.D.C. 1977).
98. E.g., Memorandum of Law of the Indonesia-U.S. Business Committee of
the Indonesian Chamber of Commerce and Industry As Amicus Curiae In Opposition to Motion for a Preliminary Injunction and Entry of Default Judgments at 26-32,
International Ass'n of Machinists & Aerospace Workers v. Organization of Petroleum
Exporting Countries, 477 F. Supp. 553 (C.D. Cal. 1979) [hereinafter cited as OPEC
Amicus Curiae]. As set forth in the brief:
The control over a nation's natural resources stems from the nature of
sovereignty. The sovereign defendants' control over their oil resources is an
especially sovereign function because oil, as the primary, if not sole, revenue producing resource, is crucial to the welfare of their nation's peoples.
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oil is the primary revenue-producing resource for each defendant,
the controls on pricing and production were necessary to maximize
state revenues. 99 They were therefore governmental activity.' 00
Furthermore, the brief argued, activities of the state-owned producing companies, which are admittedly commercial in nature, were
separate and distinct from the state's establishment of pricing and
production controls, which formed the gravamen of plaintiff's complaint and which the brief argued were governmental in nature. 1 1 The central issue in the case was how to characterize the
price-fixing activities. Each side maintained divergent positions
about both the nature of the activity and the significance to be accorded to the commercial components of the state-owned companies' activity.
The court held that it lacked subject matter jurisdiction under
the FSIA.' 0 2 The price-fixing activities of the defendants were held
to be governmental in nature, and the commercial activity exception was deemed inapplicable. 10 3 Federal District Court Judge
Hauk's decision was based in part upon the suit's effect on "the
sensitive nerves of foreign countries."' 10 4 The holding was, however, the direct product of narrowly defining the defendants' activity as "the establishment by a sovereign state of the terms and conditions for the removal of a prime natural resource-to wit, crude
10 5
oil from its territory."'
The court found that the OPEC nations' joint setting of oil
prices was merely an agreement on "how each will perform certain
sovereign acts."' 1 6 In a long footnote, the court analyzed the relationship between the activities of the OPEC nations -as sellers of oil
through their state-owned oil companies and the nations pricefixing activities. 10 7 It concluded that the two were separate and
The necessary mechanism to maximize revenue from natural resources
effectively is control of pricing and production.
99. Id. at 29-30 (footnote omitted).
100. Id. at 30.
101. Id. at 23-24.
102. 477 F. Supp. at 569.
103. Id. at 568.
104. Id. at 567. This concern is implied in the basic comity notions of sovereign immunity. See note 59 supra. However, the FSIA codified the restrictive theory
of sovereign immunity and political considerations were expressly deemed irrelevant
to the commercial activity inquiry. See text accompanying note 75 supra; text accompanying notes 118-147 infra.
105. 477 F. Supp. at 567.
106. Id. at 568-69.
107. Id. at 568 n.14.
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that the sale of oil by the state-owned companies bore no relevance
to characterizing the price-fixing activity. While the court did find
that the removal of oil and the terms of its withdrawal are
controlled by the state-owned extracting companies, the court
maintained that such activities simply alter the method or medium
for exercising a sovereign function; they do not change the nature
08
of the function.'
Although the court held that it lacked subject matter jurisdiction under the FSIA, it nonetheless proceeded to consider the
merits of plaintiff's claim. Plaintiff's action for damages was dismissed because plaintiffs were "indirect purchasers" and therefore
precluded under Illinois Brick Co. v. Illinois'0 9 from any monetary
relief for violations of the antitrust laws." i0 However, the court
held that even as indirect purchasers, plaintiffs could obtain
injunctive relief if they established proximate cause between their
injury and the defendants' activity."' The court found that the
price-fixing activities did not produce the increase in the purchase
price of gasoline, and thus the requisite nexus was absent."12
Irrespective of whether this nexus exists, the court maintained that
a foreign state could not be made a defendant in an antitrust action
because it was not a person within the meaning of section one of
the Sherman Act." 3 However, since the court held that it lacked
jurisdiction to consider the case, these findings were necessarily
dicta.
CRITIQUE
The Judiciary'sProper Role
Judge Hauk acknowledged that in resolving the issue of jurisdiction, "the determining factor is how the court defines the act or
activity. " 114 Despite the clear instructions in the House Report to
108. Id.
109. 431 U.S. 720 (1977).
110. The court maintained that plaintiff's purchase of oil products was eight
steps removed from the defendants' alleged price-fixing activities. 477 F. Supp. at
561.
111. The court agreed with the reasoning in Mid-West Paper Prods. Co. v. Continental Group, Inc., 593 F.2d 573 (3d Cir. 1979), maintaining that Congress did not
intend to totally exclude 'indirect purchasers' from the protection of the antitrust
laws and injunctive relief would be an available remedy. 477 F. Supp. at 564.
112. 477 F. Supp. at 574.
113. Id. at 572 (citing 15 U.S.C. § 1 (1976)). For a critique of this statement, see
text accompanying notes 198-203 infra.
114. 477 F. Supp. at 567.
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construe broadly the commercial activity provision, 115 Judge Hauk
read the Report as granting him the discretion to define an activity
broadly or narrowly."16 He concluded that a narrow interpretation
of the defendants' activity would comport with the "specific evidence" in the case and the FSIA intent to keep courts away from
politically sensitive areas where they could damage United States
relations with other nations.117
While the Act shuns a specific definition of commercial activity
and confers upon the judiciary, in the words of the House Report,
"a great deal of latitude" in defining that term,"18 Judge Hauk misconstrued the scope of his discretion. First, the Act and the House
Report set forth a series of general principles and rules which mandate that commercial activity be construed broadly to encompass a
wide range of activity."19 Second, the history of sovereign immunity in the United States, 120 the House Report, 12 ' and the language of the Act itself 122 make it clear that "foreign sensibilities"
and diplomatic considerations are inappropriate when resolving
sovereign immunity questions.
Judge Hauk's reference to "foreign sensibilities" is a variant of
political question doctrine. This doctrine does not support deference to diplomatic considerations for many of the same reasons that
made "foreign sensibilities" irrelevant when construing the Act itself. Political question doctrine exists to keep each branch of government in its proper place by preventing the judiciary from
deciding questions that are more properly the province of one of
the political branches of government.' 23 While foreign relations are
generally considered beyond the scope of judicial authority,12 4 this
115. See H.R. REP." No. 1487, supra note 11, at 16, reprinted in [1976] U.S.
CODE CONG. & AD. NEWS at 6614-15.
116. 477 F. Supp. at 567.
117. Id.
118. H.R. REP. No. 1487, supra note 11, at 16, reprinted in [1976] U.S. CODE
CONG. & AD. NEWS at 6615.
119. See notes 77-87 supra and accompanying text.
120. See notes 59-70 supra and accompanying text.
121. See H.R. REP. No. 1487, supra note 11, at 7, 12, reprinted in [1976] U.S.
CODE CONG. & AD. NEWS at 6606, 6610.
122. See 28 U.S.C. §§ 1603(d), 1605(a)(2) (1976).
123. See Baker v. Carr, 369 U.S. 186, 210-11, 213, 217 (1962).
124. See Goldwater v. Carter, 444 U.S. 996, 1002 (1979) (mem.) (Rhenquist, J.,
concurring, joined by Burger, C.J., Stewart and Stevens, JJ.); Chicago & S. Air Lines,
Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948); Oetjen v. Central Leather Co.,
246 U.S. 297, 302 (1918); Weston, Political Questions, 38 HARv. L. REV. 296, 318-19
& n. 89 (1925).
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is not the case if the rationales for the political question doctrine
12 5
are not implicated.
In Baker v. Carr,126 the Supreme Court set out those elements that go to deciding if an issue is a political question.
It is apparent that several formulations which vary slightly
according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation
of powers. Prominent on the surface of any case held to involve
a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking
independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or
the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Unless one of these formulations is inextricable from the
case at bar, there should be no dismissal for nonjusticiability on
the ground of a political question's presence.127
The Baker Court recognized that all of these factors ensure a
proper separation of powers.128
Considering them in order: An issue is a political question if
the court finds "a textually demonstrable constitutional commitment of the issue to a coordinate political department." 12 9 Commentary on political question doctrine generally seeks to divide the
issue into mandatory refusal of jurisdiction when an issue is
125. See Baker v. Carr, 369 U.S. 186, 211-15 (1962); Scharpf, Judicial Review
and the PoliticalQuestion: A FunctionalAnalysis, 75 YALE L.J. 518, 541-47 (1966).
126. 369 U.S. 186 (1962).
127. Id at 217 (emphasis added).
128. Id. at 210-11, 213, 217.
129. Id. at 217. This perhaps frames the issue too narrowly since it has come to
be recognized that the broad reading given the national government's foreign affairs
powers by United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), and
other cases is based on extra-constitutional considerations. See L. HENKIN, FOREIGN
AFFAIRS AND
THE CONSTITUTION 15-28
(1972); Levitan, The Foreign Relations
Power: An Analysis of Mr. Justice Sutherland's Theory, 55 YALE L.J. 467 (1946). Yet
it is clear that foreign relations has been an integral part of the political question
doctrine. See L. TRIBE, AMERICAN CONSTITUTIONAL LAw 76 n.35 (1976); Scharpf,
supra note 125, at 541.
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committed by the Constitution to a coordinate branch of government, and discretionary refusals of jurisdiction when prudential
considerations counsel against judicial resolution of the claim. 130
The first criterion enunciated by the Baker Court falls into the first
branch of political question doctrine.
Foreign affairs are commonly viewed as being committed to
the executive. 131 Yet, it appears that whatever the basis of the
holdings in Republic of Mexico v. Hoffman 13 2 and Ex Parte Republic of Peru,133 in which the Supreme Court mandated that the judiciary defer to executive determinations of immunity, 134 the Court
apparently does not currently consider deference constitutionally
mandated.' 35 This places sovereign immunity questions within the
scope of permissible judicial review.
The next two elements delineated by the Court, "[no] judicially discoverable and manageable standards for resolving [the
question, and] the impossibility of deciding [the question] without
an initial policy determination of a kind clearly for nonjudicial discretion,"' 136 are really other facets of the first criterion. If the question does not lend itself to judicial resolution or if its resolution requires an initial policy determination by a political branch of
government, then the question, almost by definition, has been
committed to a coordinate department. In the area of sovereign
immunity, courts have been resolving the issue since Chief Justice
Marshall decided Schooner Exchange v. McFadden in 1812.137 In
committing questions of sovereign immunity to the judiciary, Congress and the President apparently felt confident that these issues
could be resolved on the basis of legal principles.' 38
The next criterion set out by the Court, "the impossibility of a
court's undertaking independent resolution without expressing lack
of the respect due coordinate branches of government," 139 is part
130.
See L. TRIBE, supra note 129, at 79. Compare A. BICKEL, THE LEAST
DANGEROUS BRANCH 184 (1962), and L. HAND, THE BILL OF RIGHTS 15-18 (1958),
with Wechsler, Toward Neutral Principlesof ConstitutionalLaw, 73 HARtv. L. REV.
1, 7-9 (1959).
131. See sources notes 129 & 130 supra.
132. 324 U.S. 30 (1945).
133. 318 U.S. 578 (1943).
134. See note 59 supra and accompanying text.
135. L. HENKIN, supra note 129, at 60 n.*. See, e.g., Alfred Dunhill, Inc. v. Republic of Cuba, 425 U.S. 682 (1976).
136. 369 U.S. at 217.
137. 11 U.S. (7 Cranch) 116 (1812). See text accompanying notes 48-51 supra.
138. See text accompanying notes 119 & 120 supra.
139. 369 U.S. at 217.
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of the discretionary branch of political question doctrine.1 40 In
the realm of prudential considerations designed to maintain the appropriate separation of powers, it seems clear that the other
branches of government are free to relinquish their decisionmaking
roles and have the questions decided in accordance with legal
principle. In the past when the executive refused to make a determination on a request for sovereign immunity, the court would
determine the question on the basis of legal principle. i 4 ' The
Court in Baker v. Carr lists these decisions as examples of judicial determinations in the field of foreign relations not precluded by the political question doctrine. 142 The only change
is that the political branches deference to the judiciary is no longer
being made on a case-by-case basis, but is asserted instead in a
blanket pronouncement.
The next two factors will also be considered together: "[The
question indicates] an unusual need for unquestioning adherence to
a political decision already made; or the potentiality [exists] of embarrassment from multifarious pronouncements by various departments on one question." 143 In a series of announcements by the
State Department and three Presidents, the executive branch has
made it clear that its policy towards the OPEC nations is cooperation and conciliation.144 While the maintenance of jurisdiction
140. In this regard, act-of-state doctrine is closely analogous to political quesTtion doctrine and has been analyzed by the Supreme Court as filling similar separation of powers functions. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423,
427 (1964). See L. TRIBE, supra note 129, at 76 n.35. Thus, to the extent that deference is inappropriate on political question grounds, it is equally inappropriate to immunize the activity on act-of-state grounds. While sovereign immunity and act of
state cover different issues, they rest on many of the same criteria. See Alfred
Dunhill, Inc. v. Republic of Cuba, 425 U.S. 682, 705-06 & n.18 (1976); Timberg, supra note 18, at 27-36; Note, Sherman Act Jurisdictionand the Acts of Foreign States,
77 CoLuM. L. REv. 1247, 1255-59 (1977).
141. See, e.g., Victory Transp., Inc. v. Comisaria General, 336 F.2d 354, 358-59
(2d Cir. 1964), cert. denied, 381 U.S. 934 (1965).
142. A similar position is being adopted by the Supreme Court in act-of-state
cases, and the Court is no longer automatically deferring to the preferences of the executive branch. See L. HENKIN, supra note 129, at 61-64; The Supreme Court, 1975
Term, 90 HARv. L. REv. 56, 269 n.21 (1976).
143. 369 U.S. at 217.
144. See Interview with the President, 14 WEEKLY COMP. OF PRES. Doc. 2061,
2063-64 (Nov. 17, 1978); Hearings on Tax Aspects of President Carter's Energy Program Before the House Comm. on Ways and Means, 95th Cong., 1st Sess. 262,
264-65 (1977) (statement of Julius Katz, Ass't See. of State), reprinted in 76 DEP'T
STATE BULL. 640, 642 (1977); The President's Message to the Congress on Energy
Legislation, 13 WEEKLY COMP. OF PRES. Doc. 8, 12 (Jan. 7, 1977); Statement by the
President at the Conclusion of the Washington Energy Conference, 10 WEEKLY
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in an antitrust case may be at odds with this policy, the House Re-
port makes it clear that questions of jurisdiction are to be decided
solely by the judiciary "on purely legal grounds,"145 and that the
FSIA "sets forth the sole and exclusive standards to be used
in resolving questions of sovereign immunity raised by foreign
states." 14 6 A deference to executive pronouncements to resolve
sovereign immunity questions would inject political and diplomatic
considerations into what the Act unqualifiedly sought to establish as
an area in which decisions would be made on the basis of legal
principles alone.
It was thus a violation of the FSIA for the OPEC court to infuse diplomatic considerations into sovereign immunity issues on
political question or other grounds. This result obtains, not because
of judicial interpretation of the court's proper role, but from an act
of Congress signed into law by the President. It is the political
branches themselves who have mandated that their pronouncements on these questions not be accorded any weight by the
coordinate branch of government. Therefore, no separation of powers values are implicated by judicial resolution of the immunity
question on the basis of legal principle alone.14 7
COMP. OF PREs. Doc. 211 (Feb. 13, 1974); Statement by Secretary of State Henry
Kissinger, before the Washington Energy Conference, in Washington, D.C. (Feb. 11,
1974), reprintedin 70 DEP'T STATE BULL. 201, 206 (1974).
145. H.R. REP. No. 1487, supra note 11, at 7, reprinted in [19761 U.S. CODE
CONG. & AD. NEWS at 6606 (emphasis added).
146. Id. at 12, reprintedin [1976] U.S. CODE CONG. & AD. NEws at 6610.
147. A number of commentators disagree, characterizing an antitrust suit
against OPEC nations as an obvious political question. E.g., Baker, Antitrust Remedies Against Government-InspiredBoycotts, Shortages, and Squeezes: Wandering on
the Road to Mecca, 61 CORNELL L. REv. 911, 931 (1976); cf. Note, supra note 140, at
1255 (1977) (advocating granting sovereign immunity to OPEC nations in any antitrust suit because of potential embarrassment for United States and disruption of foreign relations). These commentators maintain that a court may rely on diplomatic
considerations since they are implicit in international jurisprudence. The original Act
proposed in 1973 mandated that courts decide immunity questions in accordance
with the Act's provisions and general principles of international law. H.R. 3493 §
1602, Sovereign Immunities of Foreign States: Hearings on H.R. 3493 Before
Subcomm. on Claims and Governmental Relations of the House Comm. on the Judiciary, 93d Cong., 1st Sess. 1, 2 (1973). When the bill was enacted in 1976 it mandated that questions of immunity be decided only in accordance with the principles
set forth in the Act. 28 U.S.C. § 1602 (1976); H.R. REP. No. 1487, supra note 11, at
12, reprintedin [1976] U.S. CODE CONG. & AD. NEws at 6610. While principles of
international law are not irrelevant, they are merely interstitial in nature. The commentators' arguments have a certain common sense appeal, but they should be directed at Congress to amend the FSIA. The courts should not ignore the clear dictates of the Act.
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Narrowly Defining the Activity:
A Substitute for ConsideringPurpose
The court focused exclusively on the OPEC nations' management of their natural resources and ignored the mechanism for that
management. It dismissed the activities of the state-owned oil
companies as merely the "medium" for managing the nations' natural resources.1 4 8 The language of the Act and the House Report
both make it clear, however, that the medium is the proper focus
of the inquiry.' 49 In defining commercial activity, for example, the
House Report lists state-owned mineral mining companies as one
example of a regular course of commercial conduct subject to juris150
diction under the Act.
The court's analysis in the OPEC case is similar to that in In
re Investigation of World Arrangements, Etc.' 51 The Anglo-Iranian
Oil Company, owned and controlled by the British Government,
refused to comply with a request for its records by the United
States Department of Justice for use in an antitrust investigation.
The district court recognized that the British Government's ownership of a controlling share in the oil company was irrelevant in
characterizing the activity.' 5 2 It concluded, however, that the company's activities were governmental because it found that the British Government acquired its interest in the company to ensure the
British Fleet's oil supply.' 53 The court failed to recognize that
ensuring naval oil supplies was only part of the company's activities. The British-Iranian Oil Company's principal activities were
producing and selling oil for profit.' 54 Although the company was
organized as a commercial entity, and although its operations were
commercial in nature, the court nonetheless focused on only one
148. 447 F. Supp. at 568 n.14. See text accompanying note 108 supra.
149. See text accompanying notes 79-81 supra. The juridical nature test was
adapted because judicial decisions that looked to purpose held the same activity
commercial in one case and governmental in another. Compare Isbrandtsen Tankers,
Inc. v. President of India, 446 F.2d 1198 (2d Cir.), cert. denied, 404 U.S. 985 (1971),
with Petrol Shipping Corp. v. Kingdom of Greece, 360 F.2d 103 (2d Cir.), cert.
denied, 385 U.S. 931 (1966). Eliminating from the inquiry the purpose for which the
activity was engaged will permit more consistent and just results. However, the juridical nature test would be subverted should the very same activity be defined
broadly by one court and narrowly by another.
150. See text accompanying note 86 supra.
151. 13 F.R.D. 280 (D.D.C. 1952).
152. Id. at 290.
153. Id.
154.
J. BLAIR, THE CONTROL OF OIL x-xi, 31, 55, 64 (1976); A. SAMPSON, THE
SEVEN SISTERS 5, 52-57 (1975).
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aspect of the company's activity when characterizing the operations
of the company as a whole. If Exxon agrees to supply oil to the
United States Air Force for free, its overall activities would not be15 5
come governmental.
The court in OPEC concluded its analysis of price fixing at the
point where it could conceivably be characterized as sovereign activity. The allegations of price fixing were not limited to the removal of natural resources however. 15 6 While establishing production levels for oil is a means of managing and conserving the
nation's natural resources, it is also a tool for regulating the market
price for ol.157 The internal price-fixing and production operations
of each OPEC member are coordinated in response to the collective
market-stabilization measures. This ensures a profitable return for
the sales arrangements made by each nation's oil producing company.158 As in the investigation of the Anglo-Iranian Oil Company,
the court has scaled down the activities of the defendants and
based its ruling on less than a full consideration of the activity at issue. The necessity of commercial sales for the relinquishment of
natural resources was ignored by the court.
Removal of Resources: Misused Authority and
Inconsequential Inquiry
After defining the activity as "the establishment by a foreign
state of the terms and conditions for the removal of a prime natural
resource,"' 159 the court sought to determine the nature of the activity. United Nations resolutions were cited as authority for the
proposition that a sovereign state has the sole power to control its
natural resources. 160 The court then examined Supreme Court de155. Timberg has also criticized the case. In his opinion the defendant was
simply producing oil and its activities should not have been immunized under a juridical nature test. Timberg, supra note 18, at 15.
156. See First Amended Complaint, supra note 15, at 17-19.
157. 477 F. Supp. at 566 (quoting testimony of Dr. Morris Adelman, court appointed expert).
158. See J. BLAIR, supra note 154, at 125-320; 0. NORENG, OIL POLIrrICS IN
THE 1980s, at 59-84 (1978) N.Y. Times, Sept. 16, 1980, at Al, col. 2 (quoting Sheik
Ahmed Zalzi Yamani, oil minister, Saudi Arabia).
159. 477 F: Supp. at 567.
160. Id. (quoting G.A. Res. 1803 § 1(1), 17 U.N. GAOR, 2d Comm. 327, U.N.
Doc. A/C 2/5 R. 850 (1962)). This is not the first instance in which United Nations
actions have been referred to in connection with OPEC nations' exercise of power
over their natural resources. Dr. Hosni, former counsel to OPEC, cites them in support of the OPEC nations' right to determine the price of crude oil. Hosni, The Oil
ProducingNations Emerging Right to Determine Oil Prices, 1 INT'L TRADE L.J. 154,
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cisions and federal legislation and concluded that the exercise of
control over natural resources by the state is always a sovereign
function. There are several basic flaws with this syllogism. First,
the United Nations resolutions 16 ' define the rights and title to resources, they do not further the inquiry, in juridical-nature-test
terms, into whether the mechanisms for the exercise of control is
governmental or commercial. A more basic flaw is the incorrect
conclusion that a nation's exercise of control over its natural resources is always an act of sovereignty. In assessing the status of
United States law, the court failed to distinguish between state
regulation of market conditions for private sellers and state regulation of the market to further its own proprietary interests.
The court relied on the Supreme Court's decision in Parkerv.
Brown 162 and the Federal Connally Hot Oil Act. 163 In Parker, a
California agricultural program that established production controls
to regulate the marketing of raisins was upheld as a proper "act of
government"'164 against an antitrust challenge. 165 The Hot Oil Act
was passed to facilitate state legislative efforts to maintain the price
165 (1975). An arbitrator of the International Arbitration Tribunal employed the same
U.N. resolution quoted by the court and cited by Dr. Hosni to support his award of
damages against Libya for nationalizing certain oil company properties. Texaco Overseas Petroleum Co. (Libyan Arab Republic), 104 J. Droit Int'l 350, 370, 17 Int'l Legal
Mat. 1, 24 (Int'l Arb. Trib. 1977).
161. An additional problem with the court's use of United Nations resolutions
is their validity as a source of international law. A number of scholars have expressed
reservations about their force in this context. See, e.g., Haight, The New International Economic Order and the Charterof Economic Rights and Duties of States, 9
INT'L LAw. 591, 597 (1975); Johnson, The Effect of Resolutions of the General Assembly of the United Nations, 32 BRIT. Y.B. INT'L L. 97 (1955-1956). See generally
Sloan, The Binding Force of a 'Recommendation' of the General Assembly of the
United Nations, 25 BiuT. Y.B. INT'L L. 1 (1948).
162. 317 U.S. 341 (1943).
163. Ch. 18, 49 Stat. 30 (1935) (current version at 15 U.S.C. §§ 715-715m
(1976)).
164. 317 U.S. at 352. The "Parker doctrine" exempts governmental bodies from
the reach of the antitrust laws. The Supreme Court has made it clear that the doctrine extends only to actions by the state itself or private action compelled by the
state necessary to achieve a legitimate governmental interest. See Cantor v. Detroit
Edison Co., 428 U.S. 579, 585-92 (1976); Goldfarb v. Virginia State Bar, 421 U.S. 773,
791 (1975). See generally Note, Parker v. Brown Revisited: The State Action Doctrine After Goldfarb, Cantor, and Bates, 77 CoLuM. L. Rxv. 898 (1977); Note, American Antitrust Liability of Foreign State Instrumentalities:A New Application of the
Parker Doctrine, 11 CORNELL INT'L L.J. 305 (1978).
165. It is clear that if the marketing agreements were reached by parties with a
proprietary interest, they would be per se violations of the antitrust laws. See Parker
v. Brown, 317 U.S. at 350.
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of oil. This legislation was passed following large discoveries of new
oil in east Texas that was being sold far below the prevailing do166
mestic price.
Both of those instances are distinguishable because the stabilization measures did not include the government's acquisition of a
direct proprietary interest. They are therefore inapposite authority
for the OPEC case. The state in both Parker and the Hot Oil Act
did not have any commercial interest in, and remained separate
and distinct from, the resulting commercial intercourse and the actual parties affected by the legislation.' 6 7 In contrast, the OPEC
nations have a direct proprietary interest in establishing the terms
for the marketing of crude oil. When the OPEC nations agree on a
price it becomes the floor sales price for the commercial transactions between the state-owned or state-controlled companies and
third parties; the two are inextricably related.168
Other Decisions CharacterizingState Control over
Resources in an Immunity Context
A number of courts have considered state control over natural
resources in resolving other immunity questions. Three courts in
three different settings relegated the state's claim that it was
exercising control over its resources to secondary importance and
denied immunity as a result of the commercial use of the resources.
In New York v. United States,169 New York claimed immunity
from federal taxation on its sale of mineral water. New York argued
that the sale of mineral waters was part of an effort to control its
natural resources and was related to the state's conservation policy.170 Justice Frankfurter wrote for the Supreme Court:
166. For an account of the events leading up to the passage of the Hot Oil Act,
see Ryan v. Amazon Petroleum Corp., 71 F.2d 1, 3-4 (5th Cir. 1934), rev'd sub nom.
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); United States v. Brumfield, 85 F.
Supp. 696, 699-701 (W.D. La. 1949).
167. See 317 U.S. at 345-49. The Hot Oil Act only created federal enforcement
powers to prevent the shipment in interstate commerce of oil produced in violation
of state laws designed to limit crude oil production. These state laws sought to stabilize prices in an extremely volatile market; the state had no proprietary interest at
all in the sale. See Ryan v. Amazon Petroleum Corp., 71 F.2d 1, 3-4 (5th Cir. 1934),
rev'd sub. nom. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); United States v.
Brumfield, 85 F. Supp. 696, 699 (W.D. La. 1949).
168. See J. BLAIR, supra note 154, at 279; 0. NORENG, supra note 158, at 60-61.
169. 326 U.S. 572 (1946).
170. Id. at 580-81.
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New York urges that in the use it is making of Saratoga Springs
it is engaged in the disposition of its natural resources. And so it
is. But in doing so, it is engaged in an enterprise in which the
state sells mineral waters in competition with private waters, the
sale of which Congress has found necessary to tax as a source of
revenue for carrying on the National Government. To say the
states cannot be taxed for enterprises generally pursued, like the
sale of mineral water, because it is somewhat connected with a
State's conservation policy, is to invoke an irrelevance to the fed171
eral taxing power.
The values of federalism present in intergovernmental immunities
cases do not easily transpose into an international framework. The
Court's analysis, however, is equally applicable to determinations
of commercial activity under the FSIA since both inquiries ultimately concern whether the governmental activity should be accorded immunity and both seek to discern whether the activity at
72
issue is commercial or governmental.1
In United States v. Deutsches Kalisyndikat Gesellschaft,17 3 a
federal district court upheld jurisdiction in an antitrust indictment
of a corporation controlled by the Republic of France. 1 74 The defendant corporation interposed the defense of sovereign immunity,
and the French Ambassador to the United States intervened in the
action and asserted that the state-controlled company was
exercising a sovereign function in its administration of the state's
1 76
potash resources. 175 Similar to the position of the OPEC amicus,
the ambassador also stated that the monies derived from the sales
of potash were turned over to the government for public use. As
such, the activities were public in nature, and to maintain a suit
against the company was to maintain a suit against the Republic of
France. 17 7 Although the court considered the commercial activities
of the defendant to be carried on for the benefit of both the Re171. Id.
172. While Justice Frankfurter expresses dissatisfaction with attempts to differentiate between a state's governmental and trading activities and was reluctant to
employ the distinction as a basis for deciding the immunity question, id. at 580, he
ultimately fixes on a test that does just that, id. at 582. The exact test adopted by
Justice Frankfurter is whether the congressional act applies to state and private persons alike and falls on both equally. Id.
173. 31 F.2d 199 (S.D.N.Y. 1929).
174. Id. at 200, 203.
175. Id. at 200.
176. See OPEC Amicus Curiae, supra note 98, at 29-32.
177. 31 F.2d at 200-01.
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public of France and private persons, the court considered the corporation separate and distinct from its stockholders. Therefore, the
activities of the corporation are to be examined in their own right.
That the Republic of France considered the conduct of its corporate agent to be governmental was not a sufficient basis upon
178
which to grant immunity for ordinary commercial conduct.
1 79
Similarly in a recent international arbitration proceeding,
the arbitrator deemed the nation's claim that it was exercising sovereign authority over its resources to be secondary to the
state's commercial commitments with respect to those resources.
In Texaco Overseas Petroleum Co. (Libyan Arab Republic), a
number of oil companies sought compensation for the nationalization of their oil concession rights.18 0 Libya asserted immunity
on the theory that the nationalization was an incident of its sovereign powers over its resources. 18 ' The arbitrator ruled in favor of
the oil companies, reasoning that the prior concession agreement
was dispositive.
82
He stated that
[t]he situation could be different only if one were to conclude
that the exercise by a State of its right to nationalize places that
State on a level outside of and superior to the contract and also
to the international legal order itself, and constitutes an "act of
government" which is beyond the scope of any judicial redress
or any criticism.18 3
In each of these cases, the court focused on the use of the resources. It was conceded that the foreign state's exercise of control
178. The court stated that "[n]either principle nor precedent requires that this
immunity... be extended to a foreign corporation merely because some of its stock
is held by a foreign state, or because it is carrying on a commercial pursuit, which
the foreign government regards governmental or public." Id. at 203; accord,In re Investigation of World Arrangements, Etc., 13 F.R.D. 280, 290 (D.D.C. 1952), discussed
at text accompanying note 152 supra.
179. Texaco Overseas Petroleum Co. (Libyan Arab Republic), 104 J. Droit Int'l
350, 17 Int'l Legal Mat. 1 (Int'l Arb. Trib. 1977).
180. Id. at 350, 17 Int'l Legal Mat. at 4-5. The companies' concession rights
were nationalized pursuant to two decrees of nationalization. The first was issued on
September 1, 1973, and the second was issued on February 11, 1974. Id. For an analysis of nationalization that characterizes the activity as commercial, see Von Mehren,
supra note 70, at 54 & n.86.
181. 104 J. Droit Int'l at 374-75, 17 Int'l Legal Mat. at 27.
182. The arbitrator stated that "in respect of the international law of contracts, a
nationalization cannot prevail over an internationalized contract, containing stabilization clauses, entered into between a State and foreign private company." Id. at 372,
17 Intl Legal Mat. at 25.
183. Id.
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over its resources was a function of sovereignty. Nonetheless, the
immunity issue turned on whether the state or nation was using or
had used its resources in a commercial manner. In the OPEC case,
the court's focus only on the exercise of control over resources improperly ignored the commercial use of the resources and its relationship to the defendants' price-fixing activities. The cases demonstrate that the commercial use of resources is not only a relevant
inquiry for sovereign immunity, but controlling.
OPEC Nations: The Transitionfrom Regulators to Traders
The court's opinion did not accord any weight to the basic
changes that have occurred during the last decade in the production and sale of crude oil.'1 Although the court recognized that
OPEC nations engage in commercial activity through their stateowned producing companies, the court reasoned that "this does not
mean, and the legislative intent does not support the conclusion,
that all activities, even those remotely connected with these companies are necessaily commercial. . . .Accordingly, we must look
to the specific activities in which the defendants engage. '18 5 The
relationship between the defendants' specific activities is more
symbiotic than remote.
After the OPEC nations assumed control of the concessions
through nationalization and participation agreements, 186 a distinction emerged between "equity" oil and "participation" oil. Equity
oil refers to the oil produced subject to the former concession
agreements. OPEC nation revenues from this oil were derived
through taxation and royalties. With participation oil, the nation receives a certain share of the oil produced, the amount depending on the participation percentage. This oil is in turn brought
back by the private oil companies from the state-owned compa184. For general discussions of the changes in the ownership and control of oil
in the OPEC nations, see J. BLAIR, supra note 154; F. ROUHANI, A HISTORY OF
OPEC (1971); Jensen, International Oil-Shortage, Cartel, or Emerging Resource
Monopoly?, 7 VAND. J. TRANSNAT'L L. 335, 341-44 (1973); Pakravan, Multinational
Firms and the Development of the Iranian Oil Industry, 7 DEN. J. INT'L L. & POL.
335, 335-36 (1977); Yamani, The Oil Industry in Transition, 8 NAT. RESOURCES L.
391 (1975); Zakariya, New Directionsin the Search for and Development of Petroleum Resources in the Developing Countries, 9 VAND.J. TRANSNAT'L L. 545 (1976);
Note, From Concession to Participation,48 N.Y.U. L. REV. 774, 778-79 (1973).
185. 477 F. Supp. at 568 n.14.
186. For a description of the varying methods of achieving effective control
through different types of participation agreements and nationalization, see Zakariya,
supra note 184, at 547-48, 568-73.
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hies. 187 Professor John Blair described the change in status as
follows:
Since the [oil companies] purchase this oil at "buy back" prices,
payment cannot be regarded as taxes and is therefore only a
business expense, worth 50o tax dollar. With the passage of
time, the OPEC countries increased their ownership interest,
resulting in a declining proportion of "equity" oil and an increasing proportion of "participation" oil until most of the
OPEC countries have secured (or will shortly obtain) full owner88
ship.'
The OPEC court attached much weight to the dependence of
OPEC nations on the income derived from oil sales.' 8 9 The court
believed that this reliance supported its characterization of the defendants' activities as governmental, since raising revenue is a traditional act of sovereignty. While price coordination among OPEC
nations increases the revenues for the state coffers,' 90 this is
merely the purpose of the activity. The Act expressly rejects purpose as a test.19 1
The proprietary interest each OPEC nation has in its wholly
or majority owned oil company is realized only through commercial
transactions,' 9 2 and the fixing of sales terms for the oil extracting
companies is an integral part of these commercial transactions. The
relationship between the collective agreement concerning the
"terms of removal" and the proprietary interest in the extracting
companies is like the establishment of corporate policy and objectives by a board of directors. The collective agreement by OPEC
187. J. BLAIR, supra note 154, at 270-71.
188.
Id.
189. The court-appointed expert, Dr. Morris Adelman, explained that "[t]he oil
revenues are the great bulk of governmental revenues. Indeed for the OPEC nations
supplying.most of the oil, the oil revenues are the great bulk of the whole national
product." 477 F. Supp. at 568 (quoting testimony of Dr. Morris Adelman, courtappointed expert). The court did not conceal its reliance on its own appointed experts. After comparing the curriculum vitae of plaintiff's experts with the court's own
appointed experts, the court stated, "This comparison confirms the wisdom of the
court's complete reliance upon its own appointed experts as contrasted with its skeptical consideration of plaintiff's experts." Id. at 566 n.12.
In 1978 Dr. Adelman wrote an article in which he maintained that the OPEC
price increases have been made with caution and offered a description of the role of
the cartel: "To a first approximation we can think of the oil nations as a single
seller." Adelman, InternationalOil, 18 NAT. RESOURCES J. 725, 726 (1978).
190. See J. BLAmR, supra note 154, at 280-86.
191. 28 U.S.C. § 1603(d) (1976).
192. See text accompanying notes 185-188 supra.
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members is made to ensure pricing coordination and the successful
return for the individual members' sales operations. 193
The court dismissed the changes in the OPEC nations' method
of acquiring revenues.
Prior to any proprietary interest in any oil extracting company,
each defendant nation set the terms of the withdrawal of its re-
sources through mediums of taxation and royalties. Thus, the defendants were engaging in this governmental conduct setting the
terms for crude production long before they obtained any ownership in any production companies. It necessarily follows that
these activities are engaged in by virtue of each defendant's status as a sovereign-because these activities preceded any proprietary interest. Therefore, the essential nature of the activity is
4
governmental.
9
The above argument assumes that the OPEC nations' role as regulators of the oil companies is necessarily the same after the OPEC
countries replaced the private producers with state-controlled
companies. The shift by the oil nations from regulators to owners
and operators of profitmaking companies changed the nature of the
activity. 195 As both the language of the statute and the House Report make clear, it is the nature of the activity that is the relevant
inquiry. Therefore, the changes in the means of raising revenue
are not irrelevant but dispositive. The OPEC nations' decision to
acquire proprietary control over the trading and production aspects
of the business they previously regulated and taxed changed the
nature of the nations' activity. It ceased to be the governmental
functions of regulation and taxation, and became instead the commercial activity of production and trade. While both raise revenue,
that fact goes to the activity's purpose.
OPEC price fixing cannot be severed from the stark reality
that the role private oil companies once played in producing and
selling crude oil is now being filled by the host countries. 198 The
193. See J.
194.
BLAIR,
supra note 154, at 280-86.
477 F. Supp. at 568 n.14 (emphasis in original).
195. See Yamani, supra note 184, at 396; text accompanying notes 185-188 supra.
196.
As of 1976, the participation in the oil companies by OPEC members
through either nationalization or agreement stood as follows: Saudi Arabia 60%, Iran
100%, Iraq 100%, Kuwait 60% in some countries and 100% in the Gulf and British
Petroleum Concession, Abu Dhabi 60%, Qatur 60%, Libya 51% or 100% depending
on the concession, Algeria 100%, Nigeria 55%, Gabon 25%, and Indonesia 100%.
Johnson & Messick, Vertical Divestiture of U.S. Oil Firms: The Impact on the World
Oil Market, 8 LAw & POL'Y INT'L Bus. 963, 967 n.20 (1976).
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relationship between these nations' proprietary interest and the
commercial nature of collectively fixing the price for crude oil is
made plain in the following statement by the former chief legal adviser to OPEC:
The drive for state participation in existing petroleum concessions that became a reality in the early seventies has continued unabated, gathered momentum, and lately assumed wider
dimensions, culminating on occasion in complete national control. As a result, the role of the international oil companies,
which was that of an "autocrat" under the traditional concessions
and subsequently was transformed to that of a "partner" under
state participation, has finally been reduced to the more modest
and realistic one of a mere provider of technical services and of a
97
long-term buyer of crude oil.'
The host nations are now the sellers of oil and the oil companies
are the purchasers. The fixing of prices for oil relates to an activity
"traditionally carried on for profit" by private industry and necessitates the collective agreement of OPEC nations. The setting of the
terms of removal is both a function and a necessity of maintaining a
state-controlled oil industry. The price-fixing activities of the defendants should have been considered in this context and thus
characterized as commercial under the FSIA.
Foreign States as Persons Under American Antitrust Laws
The court also stated that foreign states are not persons within
the meaning of the American antitrust laws. 198 This is clearly dicta
given the court's determination that it lacked subject matter jurisdiction under the FSIA. Its resolution, however, involves many of
the same questions addressed here and poses a potential bar to the
maintenance of an antitrust suit against OPEC nations.
The Supreme Court has held in Pfizer, Inc. v. India'9 9 that
foreign sovereigns are "persons" under the antitrust laws if they
appear as plaintiffs, but in other cases has held that they are not
2 00
persons when they are sued as defendants in antitrust actions.
197. See Zakariya, supra note 184, at 568.
198. 477 F. Supp. at 570-72.
199. 434 U.S. 308 (1978).
200. The Supreme Court has never directly addressed the issue of whether foreign sovereigns are persons under the antitrust laws, but it has held that domestic
sovereigns are not persons in this context. Parker v. Brown, 317 U.S. 341, 351-52
(1943). It was on this case that the district court in OPEC relied. 477 F. Supp. at 570.
Parkeritself, however, indicates that immunity does not extend to activities in which
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Since it is a common rule of statutory construction that words in a
statute are to be given a consistent interpretation in varying contexts, 2 0 ' the refusal to characterize foreign states as persons when
they are defendants must be based on nonstatutory-construction
grounds. In Pfizer, the Supreme Court distinguished those cases
holding that sovereigns are not persons when they appear as defendants in an antitrust suit on the ground that there is no "interference in sensitive matters of foreign policy" when the sovereign
appears as a plaintiff.20 2 Since the FSIA mandates that if a foreign
state is not entitled to immunity under the Act, then it "shall be li-
able in the same manner and the same extent as a private individual under like circumstances ,"203 a finding of commercial activity is
sufficient to render a foreign sovereign a person under the antitrust
laws.
CONCLUSION
The district court in IAM v. OPEC should have maintained jurisdiction over the OPEC nations given the clear dictates of the
FSIA and the commercial nature of the defendants' activities.
Judge Hauk acknowledges in his opinion that his statutory construction was shaped in part by the enormous implications that
20 4
maintaining jurisdiction would have on American foreign policy.
It is clear that the district court's decision does not square with
the state actually becomes involved in a conspiracy in restraint of trade. 317 U.S. at
351-52. Immunity is limited to those situations in which the sovereign imposes "the
restraint as an act of government." Id. at 352. See text accompanying notes 162-168
supra.
201. The word "person" has been subject to this rule of construction in civil
rights litigation for purposes of resolving municipal-immunity questions. City of
Kenosha v. Bruno, 412 U.S. 507, 513 (1972). Several circuit courts have similarly
maintained that a word or phrase used in different parts of the same statute should
be given the same meaning throughout. E.g., United States v. Nunez, 573 F.2d 769
(2d Cir.), cert. denied, 436 U.S. 929 (1978); Hotel Equities Corp. v. C.I.R., 546 F.2d
725, 728 (7th Cir. 1976); Patagonia Corp. v. Board of Governors, 517 F.2d 803, 811,
813 (9th Cir. 1975); C.I.R. v. Ridgeway's Estate, 291 F.2d 257, 259 (3d Cir. 1961).
202. 434 U.S. at 319. The leading circuit court case dealing with the question
of a sovereign state's status as a defendant under the antitrust laws, Hunt v. Mobil Oil
Co., 550 F.2d 68, 78 n.14 (2d Cir.), cert. denied 434 U.S. 984 (1977), was based
largely on act-of-state grounds. Accord, Interamerican Refining Corp. v. Texaco
Maracaibo, Inc., 307 F. Supp. 1291 (D. Del. 1970). The last case has been called into
serious question by Outboard Marine Corp. v. Pezetel, 461 F. Supp. 384 (D. Del.
1978), in which the court sustained jurisdiction under the FSIA against a stateowned company engaged in the sale of golf carts. The company was charged with
violating the antitrust laws by engaging in price cutting.
203. 28 U.S.C. § 1606 (1976).
204. 477 F. Supp. at 567.
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either the current realities of crude-oil production in the OPEC
nations or the standards established by the FSIA. The reliance on
political expedience and diplomatic concerns was part of the
decisionmaking process rejected by the FSIA, and the injection of
these concerns into questions of sovereign immunity hinders the
development of a consistent body of legal precedent defining the
still vague term "commercial activity." The decision in 1AM v.
OPEC indicates that the judiciary is still unwilling to accept the
role assigned to it by Congress and the President of deciding sovereign immunity questions solely on the basis of legal principles. 20 5
Part of the reason for this reluctance may be the consequences of
accepting that role.
The political implications of asserting jurisdiction are clear.
Equally important are the jurisprudential ramifications. The assertion of jurisdiction in this case would have been a significant
benchmark in the evolution of sovereign immunity in international
law. The enforcement of antitrust laws against a foreign sovereign
stretches both the forum and foreign state's sovereignty beyond
traditional bounds when the foreign state's sole contact with the forum is that its commercial activity had effects there. The forum
state has extended its public policy determinations about the
proper organization of economic activity beyond the state's territorial limits. This violates the one traditional limitation implicit in the
definition of sovereignty established by the current world order of
independent states: while each nation is sovereign within its borders, 20 6 each lacks authority outside those territorial limits. 2 0 7 As205. Commentators have split over whether foreign sovereigns can be subject
to American antitrust laws when they engage in commercial activities. Among those
arguing that they can be subject to American antitrust law are Houser & Rigler, Antitrust and the Foreign Government Trader: The Impact of Pfizer, Inc. v. Government
of India, 10 LAW & POL'Y INT'L Bus. 719, 762 (1978); Timberg, supra note 18, at
36-37; Gulf Western Industries, Analysis of OPEC's Status Under the United States
Antitrust Laws (1975) (produced by Simpson, Thatcher & Bartlett and Paul, Weiss,
Rifkind, Wharton & Garrison for submission to Attorney General of the United
States) (copy on file with the United States Dep't of Justice, Washington, D.C.).
Among those arguing that foreign sovereigns are immune from prosecution for violations of American antitrust laws, especially OPEC nations are Baker, supra note 147,
at 931; Stanford, The Application of the Sherman Act to Conduct Outside the United
States: A View from Abroad, 11 CORNELL INT'L L.J. 195, 202-04 (1978); Note, supra
note 140, at 1254-55. For general discussions of foreign state liability under American
antitrust laws, see I P. AREEDA & D. TURNER, ANITRUST LAW
234-240 (1978);
V. FUGATE, FOREIGN COMMERCE AND THE ANTITRUST LAWS (2d ed. 1973).
206. See sources note 21 supra.
207. See I. BROWNLIE, supra note 1, at 299-301; H. KELSEN, supra note 2, at
307-12; I L. OPPENHEIM, supra note 2, § 70; I J. VERZIJL, supra note 2, 261-62.
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serting jurisdiction also distorts the sovereignty of the state charged
with the antitrust violation since that nation's authority within its
territorial borders has been diminished.
The assertion of jurisdiction is only the manifestation and instrument of the diminution, it is not the cause. Every state has had
the absoluteness of its sovereignty reduced by the growing interdependence and interaction of the world community. The analytic
problems come from the extension of the forum state's sovereignty
through the judicial assertion of the state's public policy decisions.
An equally plausible solution to the growing interdependence of
the world community would be to force the forum state to live
with the effects of the foreign state's activities as a necessary
byproduct of world trade. Traditional notions of sovereignty provide no analytic tools for choosing between the competing claims of
the two states.
One answer is to differentiate between sovereign and nonsovereign activity. This in large part is the rationale behind restrictive immunity's distinction between commercial and governmental acts. Since the latter are presumably nonsovereign activity,
the state's sovereignty is not diminished if it is subject to jurisdiction. This theory has an allure in an age when states are increasingly gaining direct control through their commercial activity over
persons living outside the state's territorial boundries. American
notions of justice demand that those decisions of the state that affect people's lives be made publicly accountable through judicial
scrutiny.
The analytic conundrum remains, Why should the forum state's
notions of justice and optimal economic organization prevail? The
most practical solution is to make room in the Act for courts to
defer to the political branches of government on political question
grounds if the case satisfies the last two Baker v. Carr criteria,
namely, "an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on one
question."2 08 These two criteria would strike the proper balance
between the judiciary, the executive, and Congress. 20 9 Both crite208. 369 U.S. 186, 217 (1962). See text accompanying notes 143-146 supra. The
threat of embarrassing the executive branch formed part of the rationale of Republic
of Mexico, 324 U.S. 30, 35-36 (1945). See note 59 supra.
209. The central purpose of the political question doctrine is to maintain the
proper balance between the three branches of government. See text accompanying
notes 123-128 supra.
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ria require the political branches to make a firm commitment to
the foreign policy question at stake: The first criterion refers to
"unusual need" and the second to embarrassment, which could really only come after the firm commitment suggested above. Therefore, while the locus of decisionmaking would be in the judiciary,
the President or Congress could force the judiciary's band by continued, adamant pronouncements on the foreign policy questions at
issue. Resort to the other Baker criteria would place too much emphasis on executive or congressional action 2 10 and would undermine the judiciary's role in deciding sovereign immunity questions.
The most just resolution is to create an independent body of
law governing the conduct of all nations, yet finding its specific
source in the laws of none. 211 The creation of this new international law would represent the breakdown of independent states as
the sole source of sovereignty. The return to a unified world order,
advocated by a number of international law scholars2 12 and others,2 13 exists only in the distant future.
Russell S. Burman
210. See text accompanying notes 129-144 supra.
211. This is similar to Professor Trautman's proposed multistate solution to domestic choice-of-law problems. See Trautman, The Relation Between American
Choice of Law and Federal Common Law, LAW & CONTEMP. PROB., Spring 1977, at
105, 117-19.
212. See, e.g., R. FALK, A STUDY OF FUTURE WORLDS (1975); M. McDoUGAL,
H. LASSNVELL & LUNG-CHU CHEN, HuMAN RIGHTS AND WORLD PUBLIC ORDER
(1980); Jessup, supra note 62, at 171-72; Lane, supra note 4.
213. See, e.g., W. WILLKIE, ONE WORLD (1943).
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